Tuesday, October 12, 2010

Much Ado about Tires

Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82 (mem.)

Junkyards have long been strange beasts under Vermont law, and they just got a little bit stranger.

Appellant owned a junkyard in Milton that operated under a certificate of approval from the town Zoning Administrator from 1974 through 2001.  He allowed his location approval to lapse in 2001, but subsequently settled some other affairs with the town and reapplied for location approval in 2008.  Due to a change in the statutes since 1974, he now had to apply to the Selectboard rather than the Zoning Administrator.  Alas, poor junkyard operator.

The unwitting Board conducted what many readers will recognize as a typical meeting of a small-town Selectboard: they introduced the question at hand, they let everyone in the room say their piece without limitation and without objection or application of any rule of evidence or procedure, and then rendered a decision based on fairly vague standards of unclear origin.  The trial court, nonetheless, chose to review the matter “on the record.”

The controversy before the Supreme Court in this sui generis appeal—the statute has since been amended to vest jurisdiction over junkyard appeals in the Environmental Division and to require de novo review—was whether the Selectboard’s decision should be reviewed de novo or on the record.  The Chittenden Unit of the Superior Court, having chosen the latter, determined that there was “some rational basis” for the Board’s denial of the application. 

The junkyard owner contended on appeal that the trial court’s review should have been de novo as in an appeal of a typical municipal zoning decision, and as the subsequent statutory amendment mandated for junkyard-siting decisions.  The Supreme Court disagreed in a split decision, with Justices Skoglund and Burgess joining in a blistering dissent.

The majority concluded, in essence, that a Selectboard exercising authority under a broad statutory mandate that is silent about the standard of review must do nothing more than act in good faith and in a manner that is “not capricious.”  The majority further appeared to imply that the courts should defer to the selectboard’s familiarity “with the interests of their community” and noted that such bodies are “best equipped to make decisions on local matters, such as location of a junkyard, that will have an immediate effect on the municipality.”

Thus, the majority had no trouble affirming.  Findings had been made that approximately tracked the rather vague statutory criteria, which include protection from “unfavorable effect[s]” on the “clean, wholesome and attractive environment” and “general welfare of . . . citizens.”  In finding against the landowner, the Board had found among other things that landowner had too many tires, his hours were too long, there were “concerns” about arsenic levels in water despite an expert’s testimony that the arsenic was naturally occurring, and that a large pile of tires posed a public health risk.  The majority affirmed under the extremely deferential standard noted above, finding that there was at least some support in the proceedings below for each negative finding.  One could read the majority opinion and be forgiven for thinking that the appeal was from an august, detached body with long expertise in evaluating junkyard applications and entitled to deep deference.

The dissent, by contrast, begins thusly:

It was a shouting match.  Apparently there were local scores to settle.  Audience members questioned one another, talked over evidence, and interrupted the Selectboard members.  Doors were slammed and petty grievances were aired.  No “witness” was sworn in.

Thus, in short, “the trial court was not presented with an agency action, as we have generally understood that term, nor did the underlying proceedings bear the hallmarks of an administrative adjudication to which we afford deferential review.”   The dissenting Justices noted that this decision was simply nothing like the sorts of agency decisions that are traditionally entitled to deference, and if anything should be reviewed with more care than a zoning board’s decision under a zoning ordinance.  Instead, the dissenters contend, the majority “created a too-subjective-to-review standard for the aesthetic considerations uniquely within the selectboard’s competence” and then used it to review a proceeding that “failed to satisfy even minimal standards of due process.”  For the dissenters, the entire underlying proceeding was a melee of interpersonal grudges that lacked even the basic forms of due process and thus demanded a more precise and careful review by the trial court.

This opinion—which curiously issued with an unattributed majority but avec dissent with named author—may have far-reaching but, so far, uncertain effects for attorneys representing clients before selectboards in matters that are ancillary (or prerequisite) to related state permitting proceedings.

—Gavin Boyles

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