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Southview Assocs., Ltd. v. Bongartz

ELR Citation: 23 ELR 20132
Nos. No. 92-7209, 980 F.2d 84/36 ERC 1024/(2d Cir., 10/30/1992)

The court holds that a residential land developer's regulatory taking and due process claims are not ripe in the developer's appeal of the Vermont Environmental Board's (Board's) denial of the developer's application to build a subdivision on its property, which encompasses critical deer habitat. The court first holds that the developer has not suffered a permanent physical taking, because no absolute, exclusive physical occupation of the developer's property exists. The developer did not lose the right to possess the land, it retains substantial power to control the use of the property, and its right to sell the land is not left worthless. The court next concludes that the developer failed adequately to allege a physical taking claim, and instead, the permit denial is an alleged regulatory taking to which the U.S. Supreme Court's two-prong ripeness test in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), applies. In addition, the Williamson test applies to the developer's substantive due process theories. Under this test, the court holds that the developer's constitutional takings and due process claims are not ripe. First, the developer has not shown that it has obtained a final regulatory decision on its application, because the Board's rejection of the proposed application does not preclude alternative submittals. Second, although Vermont has no statutory provision for compensating takings, the developer has not established that the state has no adequate procedure for seeking compensation, as it never sought compensation in the Vermont courts. Although this concludes the court's official decision, one judge holds that the developer cannot establish that it has been deprived of economically viable use of its property, because its reasonable investment-backed expectations are not unduly interfered with simply because it must modify the configuration of its subdivision proposal if it wishes to obtain permit approval. This judge also holds that the developer cannot prove that the Board's actions failed substantially to advance legitimate state interests, because the government's goal of protecting deer and their habitat under the land use regulations benefits the public and represents legitimate state interests.

Counsel for Plaintiffs-Appellants
A. Jay Kenlan
Abell, Kenlan, Schweibert & Hall
P.O. Box 578, Rutland VT 05702
(802) 773-2754

Counsel for Defendants-Appellees
John H. Hasen, Ass't Attorney General
109 State St., Montpelier VT 05609
(802) 828-3171

Oakes, J.* (before McLaughlin and Lay,** JJ.):