Monday, December 6, 2010

Environmental Division Deflects the First Round of Freedom of Religion Claims in Act 250 Case

In re Downing Act 250 Application, Docket No. 225-11-09 Vtec
Decision and Order on Cross-Motions for Partial Summary Judgment
November 29, 2010

This appeal from the District 7 Environmental Commission's denial of an Act 250 Permit Amendment has already received a fair amount of attention from the Vermont media. At issue is a 24-foot-tall, 9-foot-wide, illuminated (or, more precisely, "illuminateable") cross in Lyndonville, which is located on property that has been subject to Act 250 jurisdiction since 1985. The Applicants installed the cross on their property in late 2007, applied for zoning permits for the cross in 2007, 2008, and 2009, and applied for an Act 250 permit amendment for the cross in June 2009.

Although the zoning permits are not at issue in this appeal, the background is interesting enough to bear repeating here. Applicants' first zoning request sought to allow the cross to be illuminated from dusk to dawn every day of the year. The town denied the request and required that the cross be reduced in size. For reasons that are unclear, no changes to the cross's size occurred, and in 2008, on their second application, Applicants were granted zoning approval for the size of the cross, but were required to keep the cross unlit. In 2009, Applicants submitted another zoning request to illuminate the cross for certain periods of the Christian calendar, amounting to a total of approximately 174 days of the year. After holding hearings in which the Applicants offered some alternative lighting proposals, the town granted approval for "the cross to be illuminated from dusk until dawn only from the first Sunday in Advent through Epiphany." In re Downing Act 250 permit, p. 4 n.4. The Applicants have appealed that decision in a separate appeal to the Environmental Division.

Just after the Applicants filed their final zoning application, they filed an Act 250 application seeking to allow the placement of the already-placed cross, and to allow illumination of the cross from dusk to dawn during certain periods of the Christian calendar totaling about 12 to 13 weeks of the year. After the District 7 Environmental Commission denied the permit amendment, the Applicants appealed, claiming in part that Act 250, and the Commission's application of Act 250 in this case, violated various of their statutory and constitutional rights to religious freedom.

In this decision, the Environmental Division decided the parties' cross-motions for summary judgment regarding the Applicants' freedom-of-religion claims and their freedom-of-speech claim. In sum, the Court determined that because this is a de novo appeal, there is no basis to examine whether the District Commission's application of Act 250 to this project violated any constitutional or statutory guarantees of religious freedom or freedom of speech. Instead, the "as applied" challenges will be considered with the merits of the appeal, and will be determined with respect to the Court's application of Act 250 to the project. In terms of the facial challenges to Act 250, the Court determined that there was no basis to conclude that the statute violates any of the federal or state guarantees of freedom of religion or freedom of speech. The Court noted that Act 250 is a law of general applicability, the primary purpose of which is to protect Vermont's natural environment, and the law is not excessively entangled with religion.

This decision may be the end of the story for the Applicants' facial challenges to Act 250, but it is only the beginning in terms of the constitutional challenges to Act 250 as applied to the Applicants' cross. The trial and resulting decision will be interesting to watch.