Jack Peters

December 2, 2009

The Vermont Supreme Court recently issued a decision that may finally allow the Chittenden Solid Waste District (CSWD) to build its long-awaited landfill. For the past eighteen years, CSWD has been trying to comply with the Vermont legislative mandate that all towns dispose of their solid waste properly, but, at every turn, CSWD has faced new litigation that has blocked the creation of the landfill.

The Court's recent decision, Gade v. Chittenden Solid Waste District, held that the contract between CSWD and the town of Williston, for the construction of a new landfill, was valid. The case arose after a group of neighbors sued CSWD in a declaratory action to stop CSWD from building the landfill. The neighbors argued that the contract was invalid for two reasons. First, the Williston selectboard had exceeded its power in entering the contract and the contract was thus ultra vires, as the selectboard guaranteed that CSWD would receive all necessary permits. The Court rejected this argument, explaining that the selectboard did not guarantee that CSWD would receive all permits. Rather, the select board had merely guaranteed that it would use its best efforts to help CSWD secure all necessary permits. The Court further explained that even if the selectboard had guaranteed that CSWD would get the permits, the selectboard could not carry out this guarantee, as other bodies, outside of the selectboard's control, grant the permits. The Court further noted that it would be impossible for CSWD to construct a landfill without the town's guarantee that it would support the effort.

Second, the neighbors argued that the contract was invalid because it lacked any date of termination. The Court also rejected this argument, explaining that courts may supply reasonable termination dates for contracts without invalidating them. The Court found that a reasonable termination date for this contract would be when the landfill had reached its capacity.

This decision follows three other Vermont Supreme Court decisions over the last fifteen years regarding the construction of the landfill. Those three decisions all concerned condemnation proceedings for the land on which the landfill will sit. In its recent decision, the Court noted CSWD's estimate that it has spent in excess of five million dollars on litigation regarding the landfill.

Even though CSWD has passed this latest hurdle, it must still get all of the necessary permits before it can build the landfill. These include zoning permits and Act 250 permits, as well as a solid-waste lined-landfill certificate from the Vermont Agency of Natural Resources. Neighbors and other interested parties can contest the zoning and Act 250 permits, and, therefore, the CSWD will likely have to further litigate in the coming years.

CSWD has been attempting to create a landfill for Chittenden county since 1991, when most of the towns of Chittenden county formed CSWD to comply with a legislative mandate that all towns join a waste-management district or develop a waste-management plan.

Sources:

Gade v. Chittenden Solid Waste Dist., 2009 VT 107.

In re Chittenden Solid Waste Dist., 163 Vt. 185, 657 A.2d 197 (1995).

Chittenden Solid Waste Dist. v. Hinesburg Sand & Gravel Co., 169 Vt. 153, 730 A.2d 614 (1999).

In re Chittenden Solid Waste Dist., 2007 VT 28, 182 Vt. 38, 928 A.2d 1183.

Vt Stat. Ann. tit. 10, §§ 6601-6632.

Vt Stat. Ann. tit. 24, § 2202a.

Associate Press, Court Upholds Williston Landfill Contract, Barre-Montpelier Times Argus, November 14, 2009, available at: http://www.timesargus.com/article/20091114/NEWS02/911140338/0/EVENTS01.

Chittenden Solid Waste District, Recommendations for the Next Generation of Solid Waste Management Strategies for Chittenden County: A Five-Year Implementation Proposal 38 (2009), available at: http://www.cswd.net/pdf/WastePlan3-25-09Final.pdf.

Chittenden Solid Waste District, 2007/2008 Annual Report 10 (2009), available at: http://www.cswd.net/pdf/AnnualReportFY08.pdf.