As Maine Goes, So Goes Vermont?

by Martin Harris 

Martin Harris

What’s interesting about the Bristol gravel quarry dispute is what’s not in it. (Practitioners of the lost (because it’s not taught much any more) skill of sentence diagramming will recognize that the antecedent of “it” is the dispute, not the quarry.) And the item absent from the dispute is relevant to the not-quite-so-lost planner-and-zoner interest in Performance-Standard land use criteria. Your Humble Scribe is a long-term enthusiast for the concept of serving all the property-owners’ interests by regulating the measurable degree of nuisance impact which can be exported across any owner’s property lines, as opposed to the far more widely practiced concept of assuming (sometimes incorrectly) that, for example, commercial land must be segregated from residential land because the former always generates just such nuisance impacts from which the latter always needs legal protection. This common-law principle was the basis of the pro-zoning SCOTUS decision in Euclid v. Ambler, 1926.In recent history, the PS concept hasn’t held much interest or shown much approval in planner-zoner circles; for example, Bristol’s dispute could have been addressed more successfully (HS opinion) had measurable impact criteria been applied to the quarry’s operation, but instead the argument has been focused on such labels as Heavy and Light Industry.

As a predictable result, some townsfolk worry (with logic based on past experience) that regulation of the quarry will be subject (or not) to unpredictable planner discretion, while others worry about “…endless litigation based on lack of clarity…” and that concern is admitted by the Board chairman recognizing the (to him) unavoidable result “…that any sentence can be interpreted in more than one way…”. It’s as fine a set of point/counterpoint statements as has ever been voiced to illustrate, albeit unintentionally, that the numerical criteria of PS requirements out-perform (pun intended) the always re-interpretable language of non-numerical criteria of land-use labeling and whatever rules go with each such label (and even more so for the now-increasingly-widely deployed Conditional Use loophole, of course). The underlying assumption, of course, is that the P & Z rules should be just as transparent and predictable to, and controlling of, the land-owners as to the land-regulators, and vice versa, a restriction on discretionary judgment calls which the profession began to see as a problem, and to oppose, as far back as the ’60’s. And in the early ’70’s Vermont’s Act 250, in the first few and best criteria, (but not all), used quantifiable impact measurement to regulate larger-scale development. And now PS seems to be making a comeback: from Lewiston, ME to Lemoore CA, municipalities are re-writing their regulations to get the land-use rules more closely related to problematical actual impacts and to get them more comprehensible to, and predictable by, the land-users and their neighbors. A Google search now brings up 2.4 million entries. On some of them you can read the actual texts of municipal plans, see what impacts are defined for regulation -noise, light, smoke, traffic, for example-and what levels of impacts are being proposed for various districts (bear in mind that the traditional practices of segregating land use by definition -residential here, business there-are not necessarily precluded by the adoption of Performance Standards) within existing or new zoning statutes.

Similarly, an unspoken adoption of the Performance Standards principle has proceeded, unadmitted but given de facto recognition, in the increasingly widespread approvals given for nice-and-quiet professional office uses within the big old houses in some near-the-downtown residential zones. Even so, PS still doesn’t enjoy much acceptance within the profession, and most of the land-owners who have accepted the basic logic of zoning (Houston, TX, is the well-known counter-example aren’t even aware that the PS option -numerical, quantitative rather than linguistic, immeasurable-for regulatory standards even exists. And the exercise of planner “discretion” -think the Husky case in Milton, for example, or the no-low-end-motel-with-a-number-in-its-name case in Manchester-has increasingly turned land-owners against planning and zoning, if it inevitably leads to such governmental abuses. At last count, the number of Vermont towns turning against such P&Z behaviors was 27.

From an historical perspective, the recent pro-PS initiatives in Maine -Harpswell and Lewiston, and doubtless more not proudly posting their efforts on the Web-call to mind that quote from the 1936 Presidential election: “as Maine goes, so goes Vermont”. That was when only ME and VT were “red” States (before that color-code had been adopted) except that it’s now (HS opinion) less likely that still-“blue” VT will follow now-“red”-again ME in the direction of PS in zoning. Going back a bit further, but more on point, planning-wise: it was in 1922 and the SCOTUS Pennsylvania Coal Co. v. Mahon case, that the Progressive jurist Oliver Wendell Holmes set the planner-discretion bar suitably vague and low: “zoning regulations aren’t a taking unless they go too far”, and that a home-owner above company-owned coal had no recourse should his house subside into the hole. More recently, the SCOTUS nine have ruled that temporary land-use denials are a compensable taking of an owner’s property (First English v. Los Angeles County, 1987) and aren’t a compensable taking: (Tahoe v. Tahoe, 2002) and in the latter case never explained why the earlier ruling was “inoperable”. On the bright side (HS opinion) the SCOTUS won’t ever rule against the principle of Performance Standard planning and zoning. Maybe Bristol land-owners and planners could design, and seek town-voter approval for, a set of transparent impact standards so that gravel could be mined, construction needs met, profits earned (!) even while neighbors would be protected against quantifiably adverse impacts