At first glance, Southview Assoc., Ltd. v. Bongartz, appears to be a fight between high-end ski homes and twenty deer. 
However, a closer examination reveals that it is not just about twenty deer. In Judge Oakes opinion, he eloquently and convincingly explains why protecting winter habitat for twenty deer will provide substantially more benefits for the people of Vermont in the long-run than an ill-suited vacation home subdivision. Let’s look at the details…
In 1982, Southview Associates purchased 88 acres of land near the Stratton Mountain ski area in the towns of Stratton and Jamaica, Vermont, intending to build a 78-lot residential subdivision. Prior to the purchase of the land, Southview evaluated the property (an upland area at an elevation of about 1600 feet) to determine whether any of the land’s characteristics would interfere with Southview’s ability to get the necessary permits, including an Act 250 permit. After putting a deposit down on the property, Southview went into further analysis of the property, hiring an engineering firm to evaluate the development plan to ensure that it would comply with state and local land use laws. The engineering company reviewed deeryard maps produced by the Vermont Department of Fish and Wildlife, which delimit wintering habitat for white-tailed deer (known as deeryards). These maps did not indicate any deeryards on Southview’s property. However, as Southview progressed with plans to develop the property, they learned that a deeryard did exist on the property, and indeed Southview’s Act 250 permit was denied under Criterion 8(A) because of the negative impact it would have on the deeryard. Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 90 (2d Cir. Vt. 1992)
Specifically, Criterion 8(A) reads:
A permit will not be granted if it is demonstrated by any party opposing the applicant that a development or subdivision will destroy or significantly imperil necessary wildlife habitat or any endangered species, and:
(i) the economic, social, cultural, recreational, or other benefit to the public from the development or subdivision will not outweigh the economic, environmental, or recreational loss to the public from the destruction or imperilment of the habitat or species, or
(ii) all feasible and reasonable means of preventing or lessening the destruction, diminution, or imperilment of the habitat or species have not been or will not continue to be applied, or
(iii) a reasonably acceptable alternative site is owned or controlled by the applicant which would allow the development or subdivision to fulfill its intended purpose.
10 V.S.A. § 6086(a)(8)(A)(2010).
Furthermore, “[n]ecessary wildlife habitat means concentrated habitat which is identifiable and is demonstrated as being decisive to the survival of a species of wildlife at any period in its life including breeding and migratory periods.” 10 V.S.A. § 6001.
To deny a permit based on this criterion, the Board must find that the project sufficiently impacts necessary wildlife habitat, and that at least one of the three subcriteria is also met. In this case, the Board found that the proposed development would destroy necessary wildlife habitat because it would destroy 10 acres of deeryard and have secondary impacts on an additional 34 acres of the deeryard. While this may seem like a relatively small amount of acreage, the Board found that 300 acres of deeryard had already been destroyed in the Stratton area, and that this was the only remaining deeryard in a 10.7 square mile watershed. Southview attempted to argue that they should receive the Act 250 permit because other similar developments had received permits, even though they had impacts on deeryards. Importantly, this demonstrates that the Board can deny a permit to an activity for which they have previously granted permits if it appears that the cumulative effects (on deeryards and deer in this instance) are too great.
Having found that the project sufficiently impacted necessary wildlife habitat, the Board looked to see whether any of the three subcriteria had also been met. In doing so, the Board found that the public benefit from the project would not outweigh the cost, and furthermore, that Southview had not taken all feasible steps to lessen or prevent the destruction of the habitat, primarily because there were other places on Southview’s property where the development would have significantly fewer impacts on deer. The Board then denied the permit on these grounds. Southview did not attempt to modify the permit, but rather brought suit against the Board, bringing both a physical and regulatory taking claim, as well as a substantive due process claim.
The Court dismissed Southview’s regulatory taking and substantive due process claims on the grounds that they were not ripe since Southview had not received a final decision regarding the use of their property, but had only been denied a permit for the specific development proposed in their permit application. The Court found that the Board indicated it would be receptive to alternative proposals if they placed the development in other locations of Southview’s property which would minimize impacts to the deeryard, and that therefore, Southview’s takings claim was not ripe since they had not put forth an alternative proposal. The Court also rejected the physical taking claim, noting that the “occasional, seasonal, and limited habitation by no more than 20 deer” was a minor physical invasion and did not amount to a permanent physical occupation. Southview, 980 F.2d at 95. The Court further noted that Southview still had the right to exclude people from the property, and could even perhaps exclude the deer if it did so in a way that did not require an Act 250 permit, such as through the construction of an orchard that would serve as a fence.
Though the decision officially ends with the dismissal of these claims and an affirmation of the lower court’s decision, Justice Oakes goes on to demonstrate that, in his opinion, the claims would also fail on their merits. He takes the claim through a regulatory taking analysis, and then addresses whether the protection of white-tailed deer through the Act 250 process represented a legitimate state interest, and thus a valid exercise of the police power which would be able to withstand a substantive due process facial challenge. Justice Oakes goes on to explain why deer are beneficial to the people in Vermont, and then closes his opinion with the following two statements, clearly demonstrating the larger significance of this case:
“Historical experience teaches, however, that today’s plentiful species may become tomorrow’s endangered or even extinct species–witness the fates suffered by the American Bison and the Passenger Pigeon. It is my view that the white-tailed deer population in Vermont need not deteriorate to such a level before the protection of their winter habitat–especially in an area where little such habitat remains–can be said to ‘substantially advance’ Vermont’s interest in preserving a healthy and populous deer herd In fact, it is difficult to imagine a decision rooted in sound game-management principles that would fail substantially to advance legitimate state interests.” Id. at 108.
And, regarding the purpose of Act 250:
“That all such landowners are subject to these [Act 250] limits enhances the fairness of the statute’s permit review process. Moreover, the widespread applicability of the restrictions preserves the natural, unspoiled qualities of Vermont–including the presence of the deer. It is qualities like these that render Vermont an economically viable place for Southview to situate a vacation home development. Like any property owner, Southview can exploit these qualities for profit; but it cannot avoid its responsibility to refrain from destroying them in the process.” Id. at 108.
In this final statement, Justice Oakes demonstrates that this is not a case of deer against ski homes. Rather, it is the existence of the ecological conditions in which a healthy deer population can survive which produces the very qualities that make Vermont a desirable place to build ski homes. If deer and their habitat are not protected, then ski homes will soon loose their value, too, as they will no longer benefit from the natural qualities which make Vermont the beautiful place that it is. Thus, this is not just about a few deer, but rather about the long-term viability of Vermont as a beautiful destination for tourists and residents alike, and in this case, we can see Act 250 protecting the natural characteristics of the State so that development will continue to be economically viable in the long run.
