Chittenden Solid Waste District v. Hinesburg Sand & Gravel Co.

Chittenden Solid Waste District v. Hinesburg Sand & Gravel Co.  (97-063); 
169 Vt. 153; 730 A.2d 614

[Filed 9-Apr-1999]


       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. 97-063


Chittenden Solid Waste District	            Supreme Court

                                            On Appeal from
     v.		                            Chittenden Superior Court

Hinesburg Sand & Gravel Co., Inc. and	    March Term, 1998
Delford & Barbara Janes


Stephen B. Martin, J.

       Brian J. Sullivan and Jon T. Anderson of Burak, Anderson & Melloni,
  PLC, and Joseph E.     Frank of Paul, Frank & Collins, Inc., Burlington,
  for Plaintiff-Appellee.

       Charles T. Shea and Robert F. O'Neill of Gravel and Shea, Burlington,
  for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, and Skoglund, JJ., Allen, Chief		
         Justice  (Ret.), Specially Assigned.


       MORSE, J.  Hinesburg Sand & Gravel Company, Inc. (HS&G) appeals from a
  judgment  of the Chittenden Superior Court condemning its land in Williston
  for use as a landfill.  HS&G  claims that the trial court erred by:  (1)
  not deciding whether a publicly-owned landfill was needed  in Chittenden
  County; (2) considering and imposing a condition on Chittenden Solid Waste 
  District (CSWD) to make sand available to HS&G after condemnation (the
  "stockpile plan"); (3)  excluding evidence that CSWD acted in bad faith by
  seeking to condemn the property; and (4)  making clearly erroneous findings
  of fact.  We affirm. 

       In March 1987, CSWD was organized as a union municipal district in
  response to 24  V.S.A. §§ 4861-4868.  Its statutory purpose under 10 V.S.A.
  § 6601(e) was to provide for  efficient, economical and environmentally
  sound management of solid waste produced by the  member municipalities. 
  All of the municipalities of Chittenden County are members of CSWD  except
  for Underhill and Bolton.  Included in the approval of CSWD by the
  Legislature was a 

  

  grant of authority "to exercise the power of eminent domain within the
  District."  Municipal  Corps., No. M-12 (1989 Adj. Sess.), Art. I, § 5(i). 
  After a lengthy process to determine  appropriate landfill sites within
  Chittenden County, CSWD selected land owned by HS&G as the  most suitable
  site.  HS&G is a family-owned business, processing sand and sand aggregate. 
  The  selected site for the landfill has significant reserves of "Redmond
  sand," a unique sand utilized  by HS&G in its processing of specifically
  formulated sand blends. 

       After CSWD adopted a resolution authorizing condemnation of this land
  for purposes of  developing a long-term regional landfill, condemnation
  proceedings were commenced in  Chittenden Superior Court under 24 V.S.A. §
  2299a-k.  This case was previously before us,  where we reversed dismissal
  of the petition and remanded for trial on the merits.  See In re 
  Chittenden Solid Waste Dist., 163 Vt. 185, 657 A.2d 197 (1995).  On remand,
  thirty-five days  of trial were devoted to the merits.  Before the trial
  court issued its opinion, HS&G filed a motion  for a new trial, asserting
  that recent evidence raised additional questions about the feasibility of 
  establishing a publicly-owned landfill in Chittenden County.

       In the judgment order, the court concluded that necessity required the
  taking of the land,  but the taking would be subject to the condition that
  CSWD, at its cost and expense, make the  Redmond sand available to HS&G,
  its successors or assigns, for thirty years or until all the  available
  sand was retrieved, whichever occurred first.  CSWD had the option of
  making the sand  available directly to HS&G or storing it at the site or on
  nearby land.  CSWD was obligated to  preserve or enhance the value of the
  sand during the excavation process and to protect the sand  from any
  significant contamination by litter or landfill leachate. 

       The court denied HS&G's motion for a new trial.  Consequently, HS&G
  filed a post-judgment motion for new trial or reconsideration and
  amendment of the judgment, which was also  denied. This appeal followed.
 
 

                                     I.

       The first issue is whether the trial court erred by concluding that
  because the Legislature  had determined the necessity for a long-term
  regional landfill in Chittenden County under 10  V.S.A. § 6601(e), the
  court need not reassess the issue.  It was HS&G's position that the overall 
  need for a project requiring the taking of private property is part of the
  necessity determination  to be made by the court de novo.  HS&G asserts
  that the court failed to consider whether or not  a landfill was needed in
  the county.

       To address the increasingly complex social, economic, environmental
  and legal issues of  managing solid wastes, the Legislature enacted
  Vermont's Waste Management Act.  See 10  V.S.A. § 6601.  The intended
  effect was to establish "a comprehensive state-wide strategy for the 
  management of waste" in Vermont, see 10 V.S.A. § 6604(a), by the creation
  of union municipal  districts, see 24 V.S.A. § 4861.  In 1989, the
  Legislature approved CSWD as the union municipal  district for Chittenden
  County.  See Municipal Corps., No. M-12 (1989 Adj. Sess.), Art. I, § 1. 
  Further, the Legislature granted CSWD the authority to "exercise the power
  of eminent domain  within the District."  Id. Art. I, § 5(i); see also 24
  V.S.A. § 2299a(a) (authorizing solid waste  management district to "acquire
  property . . . in order to construct and operate a sanitary  landfill"). 
  This accords with the policy concerns expressed by the Legislature when it
  enacted  comprehensive waste management legislation.  See 10 V.S.A. §
  6601(b) (overall problems of solid  waste management are a matter of
  statewide concern and necessitate state action); see also id. §  6601(e)
  (providing technical and financial leadership to municipalities for siting
  of solid waste  management facilities that over long-term are
  environmentally sensible and economically feasible). 

       The process for solid waste districts to acquire property through
  eminent domain for a  landfill is governed by 24 V.S.A. § 2299e, which
  requires a court determination of necessity.(FN1)

 

  Included within the legislative grant of authority for a solid waste
  district to acquire property by  eminent domain for a landfill, see 24
  V.S.A. § 2299a(a), was a restriction that the district  condemn only
  property lying within its boundaries, see id. § 2299a(b).  Although the
  legislation  does not explicitly state that a landfill should be located in
  Chittenden County, the underlying  purpose of the legislation was to
  require comprehensive waste management -- including the use  of eminent
  domain to establish sanitary landfills and other solid waste facilities --
  by every solid  waste management district in Vermont. 

       Contrary to HS&G's claim, the court in this case did determine that a
  long-term landfill  was necessary in Chittenden County under § 2299b(1). 
  The court noted that over 100,000 tons  of solid waste are generated by
  Chittenden County residents each year and, absent a landfill, the  current
  plan of indefinitely sending the waste elsewhere is not feasible.  Further,
  the court noted  that CSWD was responsible for managing solid waste under
  the State Solid Waste Plan.  See 24  V.S.A. § 2202a.  Statewide strategies
  for the management of solid waste under this plan include  (1) prioritizing
  the successful siting of new lined land disposal facilities, (2) obtaining
  adequate  landfill capacity, and (3) opening a new lined landfill in each
  region by 1991. 

       Because the necessity determination requires consideration of the
  "adequacy of other  property and locations," 24 V.S.A. § 2299b(1), a case
  might be made that no landfill in a 

 

  particular county was needed because of the existence of suitable
  facilities nearby.  On the record  in this case, however, the court's
  assessment of necessity for a landfill in Chittenden County at  the HS&G
  site was amply supported by the evidence, even if legislative findings on
  the issue were  inadequate.  

       HS&G further argues that its motion to reopen the evidence should have
  been granted to  enable it to refute the findings.  Most pertinent to the
  decision to deny the motion, the court  concluded that, even if it might be
  less expensive today to ship waste out of Chittenden County,  the HS&G
  landfill "[l]ong-term, will not be more expensive than a transfer station." 
  The court's  findings demonstrate that it concluded that a landfill was
  necessary, at least in the long run, and  that CSWD could begin proceedings
  now to meet future needs.  Despite the fact that the court  determined that
  it need not reassess the issue of necessity, we conclude that the court
  made the  necessary findings of necessity in this case to support locating
  a landfill in Chittenden County at  the HS&G site.  

                                     II.

       We next address HS&G's claim that the court exceeded its authority
  when it incorporated  into its judgment the "stockpile plan" proposed by
  CSWD to make the Redmond sand available  to HS&G following condemnation. 
  HS&G objects to the plan on two grounds.  First, it claims  CSWD had not
  properly authorized the proposal by resolution of its board of directors. 
  Second,  HS&G argues that even if the proposal was authorized by the board,
  it was unauthorized by  statute.

                                     A.

       Under 24 V.S.A. § 2299c(a), the board must vote at a duly-warned
  meeting to adopt a  resolution setting forth the necessity of the taking. 
  The board approved a resolution authorizing  the General Manager of CSWD to
  instruct its attorney to seek an amendment to the petition  committing CSWD
  to make the Redmond sand available to HS&G.  HS&G claims that enforcing 
  the plan is improper because the board never adopted the specific language
  of the petition as 

 

  amended. 

       CSWD adopted a resolution establishing the necessity of the taking of
  HS&G's property  on June 30, 1992.  The adopted resolution was a broad
  mandate to acquire the subject property  owned by HS&G in fee simple
  absolute through eminent domain.  Subsequently, CSWD, through  its
  attorneys, filed a petition with the superior court to acquire the subject
  property through  eminent domain.  The petition was a twenty-one page legal
  document signed by the attorney  representing CSWD and, unlike the adopted
  resolution, it described the property rights,  demonstrated why the
  acquisition was necessary and why eminent domain was required.  At its 
  February 22, 1995 meeting, CSWD adopted a resolution that authorized its
  attorney to file an  amended petition committing CSWD to a plan to make the
  Redmond sand available to HS&G.

       Under 24 V.S.A. § 2299c(a), the district must vote to adopt a
  "resolution setting forth the  necessity for the taking."  A "resolution"
  is a "formal expression of the opinion . . . of an official  body." 
  Black's Law Dictionary 1310 (6th ed. 1990).  After the adoption of the
  resolution, under  24 V.S.A. § 2299d(a), the district must "present a
  petition to the superior court . . . describing  the property or rights,
  and stating why it is unable to acquire it without condemnation, and why 
  its acquisition is necessary."  A "petition" is defined as a "formal
  written application to a court  requesting judicial action."  Black's Law
  Dictionary 1145.  Nothing in the language of § 2299c(a)  or § 2299d(a)
  indicates that the solid waste management district was required to adopt
  the specific  language of the petition presented to the court.  Rather,
  under § 2299c(a), the Legislature  mandated that the solid waste district
  adopt a resolution, or formal opinion, which set forth the  necessity. 
  Unlike the adopted resolution, the amended petition filed with the court by
  CSWD's  attorney was a legal document committing CSWD to making sand
  available to HS&G.  When the  district presented the petition to the court,
  it was structured as a formal application to the court,  requesting
  judicial action.  Based on the plain meaning of § 2299c(a) and § 2299d(a),
  we conclude  that the petition and the resolution are two distinct
  documents serving different functions.  We  determine that CSWD followed
  the statutory procedures of § 2299c(a) and § 2299d(a) in adopting 


 

  the resolution to authorize CWSD's attorney to amend the petition. 

                                     B.

       HS&G next attacks the "stockpile plan" on the basis that the court
  lacked statutory  authority to impose it.  HS&G argues that 24 V.S.A. §
  2299e(b) allows no middle ground: the  court may either grant eminent
  domain unconditionally or deny it altogether.  CSWD counters that  the
  judgment order does not attempt to condition the property rights under
  condemnation but only  incorporates into the judgment a mechanism for the
  court to give effect to the earth resources  provision of § 2299b.   	 

       The Legislature incorporated broad language into the necessity
  determination requiring the  court to protect earth resources under the
  rubric of Act 250.  See § 2299b(1) ("The court shall  also consider and
  give effect to the policy of protecting earth resources, as set forth in
  section  6086 of title 10.").  Unlike the highway condemnation statutes,
  for instance, the court in this  context is mandated to include a
  consideration of the extractable earth resources in the necessity 
  determination.  Compare 10 V.S.A. § 6086(a)(9)(D) (permit will be granted
  when "development  . . . will not prevent or significantly interfere with
  the subsequent extraction or processing of the  mineral or earth
  resources") with 19 V.S.A. § 501(1) (defining necessity without reference
  to  extractable earth resources). 

       The language of 24 V.S.A. § 2299e(b) is straightforward: the court
  must determine  "whether necessity requires the taking of the land and
  rights as set forth in the petition."  Thus,  the court must determine
  whether the taking of land and rights, as set forth by the petitioner, is 
  a necessity as defined in 24 V.S.A. § 2299b(1).  The petitioner is required
  to file a petition,  "describing the property or rights, and stating why .
  . . its acquisition is necessary."  24 V.S.A.  § 2299d(a).  In other words,
  the court may not grant relief on its own terms.  See State Transp.  Bd. v.
  May, 137 Vt. 320, 325, 403 A.2d 267, 270 (1979) (court may review proposals
  and weigh  them against statutory standards, but it is impermissible for
  court to create such proposals on its  own initiative).




       Here, the court, in its findings of fact and conclusions of law,
  determined that: 

     CSWD has given reasonable consideration for the greatest public 
     good and the least inconvenience and expense to itself and HS&G 
     with its plan to make the Redmond sand available to HS&G if it 
     wants it.  The plan also gives reasonable consideration and effect to 
     the policy of protecting earth resources, such as the Redmond sand, 
     as required by 10 V.S.A. § 6086.

  (Emphasis added.)  The court granted a taking in fee simple "subject to the
  condition that CSWD  takes the actions described [by the stockpile plan in]
  CSWD's Petition . . . as amended." 

       We conclude that the court did not impermissibly modify or alter
  CSWD's proposal.   CSWD would acquire HS&G's property in fee simple by
  eminent domain.  Unlike May, here the  court did not reject CSWD's proposal
  and substitute its own solution.  See id. at 322-24 403 A.2d   at 269. 
  Instead, the court included CSWD's entire amended petition in its judgment
  order in  keeping with 24 V.S.A. § 2299e(b).  In the end, the court granted
  CSWD complete title to  HS&G's property as described in the petition. 

       The condition objected to by HS&G was imposed on CSWD, not HS&G.  HS&G
  could  take it or leave it.  The condition commits CSWD to adhere to a
  plan, at CSWD's cost and  expense, to make the Redmond sand available to
  HS&G.  The court simply ordered that the sand  be made available to HS&G if
  it chose to take it.  We conclude that in so determining, the court  did
  not bind HS&G to any conditions subsequent to the condemnation, but instead
  was merely  adhering to the legislative mandate under § 2299b(1) that the
  court consider and give effect to the  policy of protecting earth resources
  as required by 10 V.S.A. § 6086.  See State Highway Bd. v.  Erickson, 133
  Vt. 305, 309, 336 A.2d 206, 208 (1975) (function of court is to understand
  and  implement the policies of law established by legislature); cf. 19
  V.S.A. § 507(b) (in condemnation  proceeding, after finding that a taking
  is necessary for a proposed highway, court may direct  transportation
  agency to construct cattle passes under highway if a reasonable need is 
  demonstrated by owner of condemned land); see generally In re Agency of
  Transp., 157 Vt. 203,  208, 596 A.2d 358, 360 (1991) (although court may
  grant a cattle pass condition in highway 

 

  condemnation necessity petition, Act 250 Board may impose additional
  conditions to preserve  environment).   

       HS&G further maintains that without the court's inclusion of the "sand
  availability plan"  the condemnation would not meet two of the statutory
  requirements for necessity: that it impose  the least inconvenience and
  expense on the property owner and that it comply with the policy of 
  protecting earth resources.  See 24 V.S.A. § 2299b(1).  Because we
  determine that the court could  grant eminent domain with the sand
  availability plan option, the issue is moot.  The court did take  into
  account "inconvenience and expense" by offering HS&G the choice whether to
  accept the  sand.  Depending on HS&G's choice, the issue of expense may be
  relevant in the damages portion  of the proceedings yet to come.  See In re
  Chittenden Solid Waste Dist., 163 Vt. 185, 189, 657 A.2d 197, 200 (1995)
  (Landfill Condemnation Statute clearly mandates that necessity be tried and 
  appealed first, with damages tried and appealed thereafter).

                                    III.

       HS&G next claims that the court erred when it granted CSWD's motion in
  limine to  exclude the testimony of board members of CSWD.  HS&G offered to
  prove that CSWD acted  in bad faith in seeking the condemnation through the
  testimony of CSWD board members that:  (1) the decision to attempt to
  acquire HS&G's property was made before the condemnation statute  was
  drafted; (2) prior to voting to condemn HS&G's property, the board did not
  adequately  consider least inconvenience and expense to HS&G; (3) the staff
  did not provide the board with  the data used by the staff in site
  selection; (4) CSWD did not set forth a reasonable compensation  for the
  value of the property; and (5) CSWD did not consider or account for
  protection of earth  resources.  HS&G contended that this testimony would
  have demonstrated the impropriety of  CSWD's actions in voting to condemn
  HS&G's property.  

       We will not interfere with a necessity determination if it is made in
  good faith and is not  capricious or wantonly injurious.  See Rosetti v.
  Chittenden County Transp. Auth., 165 Vt. 61,  68, 674 A.2d 1284, 1288
  (1996).  In In re Chittenden Solid Waste District, we determined that 

 

  the court may consider a contention that the condemnor acted in bad faith
  during the necessity  phase of the condemnation proceeding under § 2299d,
  and 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."  Id. at 190,  657 A.2d  at 200. 

       Here, the court concluded that the vague offers of proof, even if
  true, failed to demonstrate  that the condemnation was for improper motives
  or for private gain, nor did they show any  conscious wrongdoing influenced
  by ill will.  See Keus v. Brooks Drug, Inc., 163 Vt. 1, 4, 652 A.2d 475,
  478 (1994) (trial court's decision to admit or exclude evidence will not be
  reversed  "absent an abuse of discretion resulting in prejudice") (quoting
  Gilman v. Townmotor Corp., 160  Vt. 116, 122, 621 A.2d 1260, 1263 (1992)). 
  Thus, the court declined to permit HS&G to call  the commissioners to
  testify.  See Public Serv. Comm'n v. Patuxent Valley, 477 A.2d 759, 767 
  (Md. 1984) ("[O]nly a strong preliminary showing of bad faith or improper
  behavior will allow  a party challenging agency action to [call] the
  individual decision makers [to testify].").

       Moreover, the court determined that all proffered evidence which
  related to the adequacy  of the compensation offer or damages resulting
  from the condemnation was irrelevant to the trial  on the merits of
  necessity.  See V.R.E. 402 (irrelevant evidence is inadmissible); In re 
  Chittenden  Solid Waste Dist., 163 Vt. at 189, 657 A.2d  at 200
  (establishing that Landfill Condemnation  Statute mandates that necessity
  be tried and appealed first, while judicial determination of damages  is
  tried and appealed afterwards); see also State Highway Bd. v. Loomis, 122
  Vt. 125, 130, 165 A.2d 572, 576 (1960) (determining that necessity for the
  proposed taking is at issue first and is  resolved prior to actual
  condemnation and award of damages).  We conclude that the court acted 
  within its discretion in excluding the proffered evidence. 

                                     IV.


       Finally, HS&G contends that several of the court's findings of fact
  are clearly erroneous  because there is an insufficient evidentiary basis. 
  HS&G fails to specify which findings it believes  are erroneous or not
  supported by credible evidence and therefore, we decline to review this 

 

  claim.  See Perrott v. Johnston, 151 Vt. 464, 467, 562 A.2d 459, 461 (1989)
  (Court need not  search for errors not supported by argument or pointed out
  in the record). 

       Affirmed.



FOR THE COURT:

__________________________
Associate Justice


------------------------------------------------------------------------------
                                  Footnotes

FN1.  Necessity is defined in 24 V.S.A. § 2299b(1) as:

  a reasonable need which considers the greatest public good and the 
  least inconvenience and expense to the condemning party and to the 
  property owner.  Necessity shall not be measured merely by  expense or
  convenience to the condemning party.  Due  consideration shall be given to
  the adequacy of other property and  locations and to the quantity, kind and
  extent of cultivated and  agricultural land which may be taken or rendered
  unfit for use by  the proposed taking. . . . The court shall also consider
  and give  effect to the policy of protecting earth resources, as set forth
  in  section 6086 of Title 10.  Consideration also shall be given to the 
  effect upon home and homestead rights and the convenience of the  owner of
  the land, to the effect of the facility upon scenic and  recreational
  values, and to the effect upon the town grand lists and  revenues.