                                 STATE OF VERMONT
SUPERIOR COURT                                            ENVIRONMENTAL DIVISION
Vermont Unit                                               Docket No. 171-12-12 Vtec


Umpire Mtn. LLC WW & WS Permit                                 JUDGMENT



       Charles Chapman, Barbara Chapman, John Ferine, and Cheryl Nicholas (Appellants)
appeal the Wastewater System and Potable Water Supply Permit WW-7-3606 (the Permit)
issued by the Vermont Agency of Natural Resources, Department of Environmental
Conservation (DEC) to Umpire Mountain, LLC (Applicant) on May 21, 2012.            The Permit
authorizes Applicant to create five new, on-site potable water supply and wastewater systems
to serve five proposed single-family residences on Applicant’s 10.3 acres of undeveloped land
on Washburn Road in Burke, Vermont.
       In this proceeding, Appellants are represented by Robert A. Gensburg, Esq., Applicant is
represented by Kyle C. Sipples, Esq., and the Agency of Natural Resources is represented by
Anne Whitely, Esq.
       In a February 27, 2014 decision, we addressed the parties’ cross-motions for summary
judgment concerning whether the Permit unlawfully impacts Appellants’ use of their property.
In support of their Motions for Summary Judgment, the parties filed a written Stipulation of
Facts. These facts are set forth in the Court’s February 27 decision. Considering the facts, we
first concluded that pursuant to 10 V.S.A. Chapter 64 and the Wastewater System and Potable
Water Supply Rules, DEC has the power to impose the isolation distances at issue in considering
a Wastewater System and Potable Water Supply Permit application. Second, we concluded
that we are without jurisdiction to answer Appellants’ questions asking whether the Permit
created an easement of any kind or whether the Wastewater System and Potable Water Supply
Rules and the Water Supply Rules are unconstitutional on their face. To the extent that
Appellants ask whether a taking has otherwise occurred due to limitations on how they might
use their property, we concluded that we do have jurisdiction. We further concluded, however,

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that based only upon the Stipulation of Facts, we did not have sufficient facts before us at that
time to determine whether a regulatory taking had occurred. Thus, we denied Appellants’ and
Applicant’s cross-motions for summary judgment.
        During a final pre-trial conference on August 20, 2014, the parties stated on the record
that they did not have additional evidence to offer at trial. The parties asked, therefore, that
the Court render a decision on the sole remaining question as to whether isolation distances
effect a regulatory taking due to limitations on how Appellants might use their property.
        In our February 27 decision, we noted that Appellants neither allege nor demonstrate
that DEC has deprived them of all “economically viable use” of their land. See Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1015–16 (1992) (holding that a “total taking” occurs “where
regulation denies all economically beneficial or productive use of land”). To determine whether
a landowner has suffered deprivation of all economically viable use, we must consider not only
the portion of property affected by the regulation but “the parcel as a whole.” Tahoe-Sierra
Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 327 (2002) (citing Penn Cent.
Transp. Co. v. New York City, 438 U.S. 104, 130–31 (1978)). Thus, we continue to conclude that
DEC’s action does not amount to a “total taking” of Appellants’ property. See Lucas, 505 U.S. at
1030.
        Lastly, to determine whether a partial taking has occurred, we must weigh (1) the
economic impact of the Rules on Appellants; (2) the interference with Appellants’ “distinct
investment-backed expectations”; and (3) the character of DEC’s action. See Penn Cent.
Transp. Co., 438 U.S. at 124. Merely alleging that a landowner’s property use has been limited
is insufficient to establish a taking. See Chioffi v. City of Winooski, 165 Vt. 37, 43 (1996) (noting
that an inability to develop property for its most profitable beneficial use is not a taking).
        We now consider these issues based on the parties’ Stipulation of Facts which is the
totality of evidence before us. It remains unclear whether Appellants have been limited in any
way in the development of their property. Although the DEC decision on appeal is final as to
the design and permitting of Applicant’s wastewater and water supply systems, we are unable
to conclude whether Applicant’s permit restricts development on Appellants’ properties. The
Stipulation of Facts does not show that the Permit will affect any existing development plans.


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The Stipulation of Facts only states that Appellants “could potentially be prohibited” from
creating a wastewater or water supply system within the isolation zones. (Stip. of Facts at ¶¶
20–23, filed September 11, 2013.) The Stipulation of Facts also fails to show any particular
economic impact resulting from the Permit. Without such information, it is impossible to
determine how DEC has limited Appellants in the use of their property.
       The Stipulation of Facts does show, however, that the Permit’s isolation distances cross
onto Appellants’ properties. Whether Appellants may be prohibited from developing portions
of their properties will not be known until some future time, when Appellants seek ANR
approval for their intended action. Until we have ANR’s decision on these future applications,
we cannot conclude as a matter of law whether a regulatory taking has occurred under the
Penn Cent. Transp. Co. factors. We therefore conclude that Appellants’ partial regulatory
taking claim is not yet ripe. See Town of Grand Isle v. Patry, 2004 VT 24, ¶ 8, 176 Vt. 627 (citing
Killington, Ltd. v. State, 164 Vt. 253, 257 (1995)) (noting that “regulatory takings claims are not
ripe for review until applicant has obtained final decision regarding permit request and has
utilized state procedures for obtaining just compensation”). For the reasons stated above, the
appeal is DISMISSED without prejudice.

       This completes the current proceedings before this Court.


       Electronically signed on August 27, 2014 at 03:02 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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