How the Zoning Game She Is Played

It is a familiar feature of land-use (as well as of eminent domain) law that the courts exhibit great deference to local regulatory decisions. Of course, as everybody who has had any contact with the process knows, local land-use decisions can be a farce that is riddled with politics, favoritism, NIMBYism and (in the redevelopment context) crony capitalism. Still, judges dutifully rubber-stamp the local land-use proceedings, and do so with an unseemly indifference or even hostility to the legitimate interests of the aggrieved landowners. But not all judges and not always.

Here is a gem from the Supreme Court of Vermont, or more accutrately from its two dissenting Justices (Skoglund and Burgess) in Rhodes Salvage/ABC Metals v. Town of Milton Selectboard, 9A.3d 685 (Vt. 2010).  It was precipitated by an application for a certificate of approved location of a junkyard which has been in operation as a preexisting nonconforming use since 1974, but whose owners inadvertently let the approval lapse and applied for its renewal in a tardy fashion. But the town selectboard said “No.” [For the benefit of flatlanders unacquainted with New England terminology, a selectboard is a town council, whose members are referrred to as “selectmen.”]

Anyway, the junkyard owners appealed from the town’s decision, but alas, the court upheld it using the “highly deferential” type of review. So far, so bad. But Justice Skoglund’s dissent tells us what really happened. Describing the proceedings before the selectboard, he said:

“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. There was no real opportunity to challenge the relevance of testimony or the competence or expertise of or bias of any ‘witness.’ This is the proceeding the majority equates  with a formal agency adjudication.

*    *    *

“Indeed, portions of the hearing transcript read more like a schoolyard argument that any sort of respectable deliberative process.”

And so it goes in land-use biz. Reminds us of some of the stories in THE ZONING GAME, a wonderful  1968 book by the late, great Dick Babcock who in his day was a virtuoso of land-use. We could sure use him today to do justice to this one. And others like it.

Anyway, three cheers for Justices Skoglund and Burgess for telling it like it is for once.

Oh yes, we almost forgot. The good news is that the court called a junkyard, a “junkyard,” and not a “recycling facility” or some other silly neologism.

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