Parker v. Town of Milton

Parker v. Town of Milton  (97-422); 169 Vt. 74; 726 A.2d 477

[Opinion Filed 18-Dec-1998]
[Motion for Reargument Denied 16-Feb-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. 97-422


Wilbur Parker, et al.                             Supreme Court

                                                  On Appeal from
     v.                                           Chittenden Superior Court

Town of Milton, et al.                            June Term, 1998


       Linda Levitt, J.

       John L. Franco, Jr., Burlington, for Plaintiffs-Appellants.

       William H. Sorrell, Attorney General, Ron Shems, Assistant Attorney
  General, and David Groff, Law Clerk (On the Brief), Montpelier, for
  Defendants-Appellees.


PRESENT:  Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and Katz,
          Supr. J., Specially Assigned


       JOHNSON, J.   Plaintiffs, six individual Vermont residents and two
  labor unions, appeal a superior court order dismissing their complaint. 
  Plaintiffs opposed the construction of a bridge in the Town of Milton and
  alleged violations of the public trust doctrine, their constitutional
  rights to due process and equal protection of the laws, and the Vermont
  Administrative Procedures Act. The superior court dismissed thier complaint
  for lack of standing with respect to their declaratory judgment action, and
  failure to state a claim with respect to their constitutional and statutory
  causes of action.  We affirm.

       The Town of Milton (Town) applied for a required encroachment
  permit (FN1) to build a bridge across Arrowhead Mountain Lake that would
  connect Route 7 with a town highway and

 

  an industrial site owned by Husky Injection Moldings.  The Department of
  Environmental Conservation (DEC) held a public information meeting
  concerning the Town's permit application after a petition was  presented
  pursuant to 29 V.S.A. §405(a).  The DEC subsequently issued an encroachment
  permit to the Town of Milton on June 6, 1997, which allowed construction of
  the proposed bridge.(FN2)

       On July 25, 1997, plaintiffs filed an action in superior court arguing
  that because the public trust doctrine (FN3) prevents the Legislature from
  granting rights in the public trust property for private use, see State v.
  Central Vt. Ry., Inc., 153 Vt. 337, 344, 571 A.2d 1128, 1131 (1989), the
  Legislature therefore has a nondelegable duty to determine whether the
  bridge at issue in this case in fact serves a public use.  Specifically,
  plaintiffs sought a declaratory judgment stating that, in addition to
  obtaining an encroachment permit, the Town of Milton is required to obtain
  (1) a legislative grant of airspace over the lake and (2) a legislative
  determination that the bridge is a "public use" within the meaning of the
  public trust doctrine.(FN4)

       Plaintiffs also claim they were denied their rights under the United
  States Constitution to procedural due process and equal protection because
  their representative was not allowed to present their interests at the
  public hearing.  Plaintiffs allege that others in attendance at the hearing
  shouted to prevent their representative from speaking and the DEC officer
  conducting the hearing ruled their representative out of order.  Finally,
  plaintiffs allege that the encroachment permit violated the Vermont
  Administrative Procedures Act, 3 V.S.A. §§ 801-849 (VAPA),

 

  because it was issued without a "contested case" hearing, which plaintiffs
  allege is required by 3 V.S.A. § 801(b)(2).

       The superior court dismissed plaintiffs' challenge to the 
  encroachment permit, finding that plaintiffs did not have standing to mount
  such a challenge because they merely asserted the legal conclusion that the
  public trust was being derogated and did not describe any actual injury,
  only generalized grievances.  The trial court further found that plaintiffs
  had not alleged elements sufficient to sustain an equal protection claim
  and were not "aggrieved persons" within the meaning of the VAPA, and
  therefore dismissed the constitutional and VAPA-based causes of action for
  failure to state a claim.

                         I. The Standing Requirement

       We first address whether plaintiffs have standing to request a
  declaratory judgment with respect to the encroachment permit.  A plaintiff
  must allege facts sufficient to confer standing "[o]n the face of the
  complaint."  Town of Cavendish v. Vt. Pub. Power  Supply Auth., 141 Vt.
  144, 147-48, 446 A.2d 792, 794 (1982).

       The standing requirement originates in Article III of the United
  States Constitution, which states that federal courts have jurisdiction
  only over actual cases or controversies.  See U.S. Const. art. III.  This
  requirement has been adopted in Vermont. "The judicial power, as conferred
  by the Constitution of this State  upon this Court, is the same as that
  given to the Federal Supreme Court by the United States Constitution; that
  is, the right to determine actual controversies arising between adverse
  litigants, duly instituted in courts of proper jurisdiction."  In re: 
  Constitutionality of House Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172
  (1949) (internal quotations omitted).

       An element of the case or controversy requirement is that plaintiffs
  must have standing, that is, they must have suffered a particular injury
  that is attributable to the defendant and that can be redressed by a court
  of law. The existence of an actual controversy "turns on whether the
  plaintiff is suffering the threat  of actual injury to a protected legal
  interest, or is merely

 

  speculating about the impact of some generalized grievance."  Town  of
  Cavendish, 141 Vt. at 147, 446 A.2d  at 794. The standing and case or
  controversy requirements thus enforce the separation of powers between the
  three different branches of government by confining the judiciary to the
  adjudication of actual disputes and preventing the judiciary from presiding
  over broad-based policy questions that are properly resolved in the
  legislative arena.  See Allen v. Wright, 468 U.S. 737, 752 (1984);
  Hinesburg Sand & Gravel Co., Inc. v. State, 166 Vt. 337, 341, 693 A.2d 1045, 1047-48 (1997).

       In Vermont, a plaintiff must demonstrate standing for a court to have
  jurisdiction over a petition for declaratory relief.  See Town of
  Cavendish, 141 Vt. at 147, 446 A.2d  at 794; Gifford Memorial Hosp. v.
  Randolph, 119 Vt. 66, 70, 118 A.2d 480, 483 (1955).  This is because a
  declaratory judgment can only "provide a declaration of  rights, status,
  and other legal relations of parties to an actual or justiciable
  controversy."  Doria v. University of Vt., 156 Vt. 114  117, 589 A.2d 317,
  318 (1991) (quoting Robtoy v. City of St. Albans, 132 Vt. 503, 504, 321 A.2d 45, 46 (1974)).  Otherwise, the judgment would be no more than an
  advisory opinion, which we lack the constitutional power to render.  See
  Massachusetts Mun. Wholesale Elec. Co. v. State, 161 Vt. 346, 363, 639 A.2d 995, 1006 (1994); accord Lace v. University of Vt., 131 Vt. 170, 175, 303 A.2d 475, 478 (1973).

       Vermont has adopted a three-part test to determine whether a plaintiff
  has standing.  A plaintiff  must, at a minimum, show (1) injury in fact,
  (2) causation, and (3) redressability.  See Hinesburg Sand & Gravel Co.,
  Inc., 166 Vt. at 341, 693 A.2d  at 1048; (adopting test articulated in Lujan
  v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).  Stated another
  way, a plaintiff must allege personal injury fairly traceable to the
  defendant's allegedly  unlawful conduct, which is likely to be redressed by
  the requested relief.  See Allen, 468 U.S.  at 751.  The injury must be an
  "invasion of a legally protected interest," Lujan, 504 U.S.  at 560, not a
  generalized harm to the public.

       The standing requirement applies to organizations as well as
  individuals.  An association

 

  has standing to bring suit on behalf of its members when (1) its members
  have standing individually; (2) the interests it asserts are germane to the
  organization's purpose; and (3) the claim and relief  requested do not
  require the participation of individual members in the action. See Hunt v.
  Wash. State Apple  Adver. Comm., 432 U.S. 333, 343 (1977).  An organization
  must show a concrete injury; an abstract interest in the outcome of an
  adjudication is insufficient. See Simon v. Eastern Ky. Welfare  Rights
  Org., 426 U.S. 26, 40 (1976).  Because an organization's members must have
  standing for  the organization to have standing, we subject the union and
  individual plaintiffs to the same analysis.

       Plaintiffs in this case argue that invoking the public trust doctrine
  should relieve them of the requirement to demonstrate individualized harm. 
  They argue that, because members of the public are the beneficiaries of the
  public trust in navigable waters, mere status as a member of the public
  should be sufficient to confer standing.  They analogize their claimed
  cause of action to a shareholder's derivative suit.  Thus, plaintiffs
  argue, they need  only show a harm to the trust as a whole, not an
  individualized harm to their own private property.

       Contrary to plaintiffs' contention, the standing requirement of 
  particularized injury is not suspended in cases where the plaintiff asserts
  the public trust doctrine.  The Court has already decided this precise
  question.  In Hazen v. Perkins, 92 Vt. 414, 105 A. 249 (1918), we found
  that the defendant, by virtue of the public trust doctrine, had no right to
  build structures that affected the lake level, and that the defendant's
  activities "affect[ed] the common  rights of all persons and produce[d] a
  common injury."  Id. at 421,  105 A.  at 251.  We further found that the
  defendant's actions were a  public nuisance against which the State would
  have a remedy.  See id.  Nonetheless, we concluded that the plaintiffs in
  that case, owners of land abutting the contested body of water, were
  required to show "that they have suffered some special and substantial 
  injury, distinct and apart from the general injury to the public" to 
  maintain a private suit against such a public nuisance.  Id.  The impact of
  the defendant's activities on the plaintiffs' aesthetic enjoyment and use
  of the water were not deemed to be injuries sufficient to establish

 

       standing.  See id. at 422, 105 A.  at 252.  Thus, Hazen establishes
  that standing is not conferred on individuals merely by virtue of their
  status as beneficiaries of the interest protected by the public trust
  doctrine.

       Nevertheless, plaintiffs contend that imposing the standing
  requirement in the public trust area is contrary to the logic of the public
  trust doctrine and would defeat its purposes.  Even if that were true,
  standing is a jurisdictional requirement that may not be abrogated in favor
  of furthering the purposes of the public trust doctrine.  Vermont courts
  addressing requests for declaratory judgment are only empowered to decide
  justiciable controversies.  By requiring plaintiffs to show actual injury
  to meet the standing requirement, we ensure that the cases before the
  courts are fully and vigorously litigated in pursuit of genuine interests. 
  Moreover, we do not agree that the standing requirement undermines the
  public trust doctrine.  The purpose of the doctrine is to preserve the
  public's interest in Vermont's navigable waterways.  See 29 V.S.A. § 801. 
  It does not advance the public trust doctrine to permit litigants without a
  personal stake in the proceedings to claim harm to some generalized
  interest that they alone articulate, purportedly on behalf of the public
  interest.  Here, plaintiffs' claim of injury  is to the economic and
  employment interests of the public in general. While plaintiffs may have
  some legitimate concerns about how the proposed project will affect those
  interests, they may not address them to this Court.  Any broad,
  policy-based inquiry into the economic and employment interests affected
  should be addressed to the Legislature.

       The requirement of an actual, particularized injury cannot be
  suspended in cases where plaintiffs invoke the public trust doctrine.

                    II. Plaintiffs' Constitutional Claims

       We next turn to plaintiffs' claims arising out of the events at  the
  public information meeting.  In reviewing dismissal for failure to state a
  claim, we assume that the facts alleged in the complaint are true and
  affirm only where "it appears beyond doubt that there  exist no
  circumstances or facts which the plaintiff could prove above the claim made
  in [the] complaint

 

  which would entitle [the plaintiff] to relief."  Association of  Haystack
  Property Owners,  Inc. v. Sprague, 145 Vt. 443, 446, 494 A.2d 122, 124
  (1985) (quoting Levinsky v. Diamond, 140 Vt. 545, 600-01, 442 A.2d 1277,
  1280-81 (1982)).

       Plaintiffs seek relief under 42 U.S.C. § 1983, claiming that their
  constitutional rights to due process and equal protection of the laws were
  violated because (1) they were denied the minimum essentials of procedural
  due process because they did not have an opportunity to present their
  interests at a meaningful time and in a meaningful manner; (2) they were
  denied procedural due process because the administrative proceeding was
  conducted by a biased decisionmaker; and (3) they were denied equal
  protection under the law because they were treated differently from others
  similarly situated.  Both a due process and an equal protection claim must
  be predicated on some form of state action.  The only state action alleged
  by plaintiffs was the decision of the presiding DEC officer to rule their
  representative out of order.

       First, the requirements of due process apply only to agency decisions
  that are adjudicative, not legislative.  See In re Appeal of Stratton
  Corp., 157 Vt. 436, 442, 600 A.2d 297, 300 (1991). The decision whether to
  grant an encroachment permit does represent an adjudicative function, as
  plaintiffs claim, but the encroachment permit is not granted or denied at
  the public information meeting. Rather, the purpose of the meeting is to
  determine the impact of the encroachment on the public interest.  This is a
  policy determination, involving general facts, and having a prospective
  application.  These are characteristic of the legislative function. See id.
  at 443, 600 A.2d  at 301.  The public information hearing is not a
  determination of particular facts and past events, which are
  characteristics of an adjudicative proceeding.  See id.  Therefore,
  plaintiffs received all the process to which they were entitled: a public
  information meeting was held in response to their petition and they
  received notice of the meeting as required by 29 V.S.A. § 405.

       Second, due process protects individuals when their life, liberty, or
  property is at issue in a proceeding.  Plaintiffs' due  process claim fails
  because plaintiffs did not have a cognizable property interest at stake in
  the public information meeting. Individual property rights are not

  

  at issue at the public information meeting, rather, the stated purpose of
  the meeting is to determine whether the encroachment will adversely affect
  the public good.  See 29 V.S.A. § 405(b).  Even if the encroachment permit
  issue were being decided at the public information meeting, plaintiffs are
  not the applicants for the permit, and thus they do not have a property
  interest that is affected by the outcome of the agency s decision on the
  permit.

       Finally, an equal protection claim must be premised on some form of
  discriminatory state action, either in the form of a discriminatory
  legislative classification or selective enforcement of a facially neutral
  law.  There is no state action present if others attending the public
  information meeting shouted to prevent plaintiffs' representative from
  speaking.  The only possible basis  for plaintiffs' claim, therefore, is
  the decision of the DEC officer  to rule their representative out of order. 
  Because there is no discriminatory legislative classification at issue in
  this case, plaintiffs are presumed to allege something analogous to
  selective enforcement, i.e., that they were selectively ruled out of order.
  To sustain a claim of selective enforcement, plaintiffs must show (1) that
  they were treated differently from others similarly situated and (2) that
  this selective treatment was based on impermissible considerations such as
  race, religion, intent to inhibit the exercise of constitutional rights, or
  malicious intent to injure.  See LeClair v. Saunders, 627 F.2d 606, 609 (2d
  Cir. 1980).  Plaintiffs have not indicated that the DEC officer ruled their
  representative out of order on the basis of any suspect classification or
  illicit motive.  Therefore, plaintiffs have not alleged any facts that
  suggest there is a basis for granting relief.

                     III. Plaintiffs' VAPA-based Claims

       Plaintiffs' VAPA-based claim fails for the same reason that 
  plaintiffs' due process claim fails, namely, because plaintiffs had  no
  cognizable interest at stake in the proceedings at which the alleged
  violation occurred.  Plaintiffs assert that VAPA was violated because no
  contested case hearing was held, arguing that 3 V.S.A. § 801(b)(2) requires
  a contested case proceeding for any licensing proceeding.  In fact, section
  801(b)(2) merely defines a contested case as "a 

 

  proceeding, including but not restricted to rate-making and licensing, in
  which the legal rights, duties, or privileges of a party are required by
  law to be determined by an agency after an opportunity for hearing."  The
  definitions provided in this section  help clarify the statutory sections
  that follow but impose no legal obligation in and of themselves. 
  Plaintiffs presumably meant to refer to the requirement imposed by 3 V.S.A.
  § 814(a), which states that "[w]hen the grant, denial, or renewal of a
  license is required  to be preceded by notice and opportunity for a
  hearing, the provisions of this chapter concerning contested cases shall
  apply."

       The definition of a contested case cited by plaintiffs makes clear,
  however, that the function of contested cases is to adjudicate the rights
  of a party to agency action.  A party for purposes of the VAPA is defined
  as "each person or agency named or admitted as a  party, or properly
  seeking and entitled as of right to be admitted as a party."  3 V.S.A. §
  801(b)(5).  Black's Law Dictionary defines a  party as "a person concerned
  or having or taking part in any affair,  matter, transaction, or
  proceeding."  Black's Law Dictionary 775 (6th  ed. 1991).  Because
  plaintiffs were not parties to the decision to grant or deny the
  encroachment permit, they cannot register a demand for a contested case
  hearing.

       Plaintiffs have not alleged a special and substantial injury, nor have
  they alleged facts sufficient to suggest any conceivable theory of relief
  under the United States Constitution or the Vermont Administrative
  Procedures Act.  Their claims were properly dismissed.

       Affirmed.


                          FOR THE COURT:



                          _______________________________________
                          Associate Justice


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


 FN1. 29 V.S.A. § 403(a) provides that "no person shall encroach on any 
  of those waters and land of lakes and ponds under the jurisdiction of the
  [Vermont water resources] board without first obtaining a permit under this
  chapter.  No permit shall be granted if the encroachment adversely affects
  the public good."

FN2.  On July 19, 1997, one individual and one union plaintiff filed
  an appeal with the Water Resources Board challenging the granting of the
  permit, however, it was dismissed as untimely.  An appeal of this ruling
  remains pending below and is not before us today.

FN3.  29 V.S.A. § 401 states in parts:  "Lakes and ponds which are public
  waters of Vermont and the land lying thereunder are a public trust, and it
  is the policy of the state that these waters and lands shall be managed to
  serve the public good . . . to the extent authorized by statute."

FN4.  Because of our ultimate disposition of this case, we do not
  reach the merits of these claims.