Why the E-Court Pulled a 180 Part II 
By Martin Harris

Over the long pull, the law isn’t a set of rules, black ink on white paper; those written prescriptions merely codify what the general public expectation calls for. Thus, our European ancestors once, quite legally, burned alive or tore into pieces those who violated contemporary expectations; and more recently, our own respected jurists found legal support for slavery and prohibition, then changing their minds and their legal rules in deference to the public changing its own expectations. 

On a less life-and-death plane, the same transition in expectations has taken place in that part of Vermont governance which sets the rules for land use. Once upon a time, you could attend a planning board meeting and reliably expect to hear a grizzled old Yankee warn them that "no one’s goin’ to tell me what I can’t do with my land" and today you can attend a similar hearing and reliably expect to hear a neighbor to a proposed project demand that the permit be denied because "we like it here just the way it is" even though the zoning regulations clearly permit the proposed use.

That’s just what happened in Randolph, recently, when a would-be small-scale developer proposed a 9-unit multi-family project on 5 acres in a multi-family zone. Sensing the broad public expectation (a generalized anti-private-sector development bias, not only in Randolph, but across most of the State) the Zoning Board used such rationales as possible dumpster odor and solar shading to deny the application, and on appeal to Judge Meredith Wright at the State Environmental Court, she too showed she knows which way the political winds blow in Vermont and supported the Randolph Zoning Board’s permit denial, in her decision giving zero attention or credence to the basic "zoning-as-of-right" principle which requires, not unreasonably, that a project which meets all published zoning criteria must be approved, a point the developer made in his written appeal.

The problem arose because the law follows shifts in public expectations. It doesn’t lead. And public expectations have shifted appreciably since the days of the old Yankee majority: now, a new gentry-left majority believes it has the innate right to determine what gets built and what doesn’t, case by case, irrespective of existing zoning prescriptions, and the written regulations have yet to catch up. (The ongoing move to add ever more acreage to "conditional use" reflects the planners’ desire to change the rules so as to create a plausible legal basis for subjective approvals and disapprovals, and thereby please their constituencies and stay in office.)

Judge Wright ordered the developer to modify his proposal and re-submit it to the Randolph zoners; he did so (a relatively insignificant shift of building footprint on the site) and was rejected again. Once again, he appealed to Judge Wright, and this time –surprise—she agreed with him, even citing his earlier, previously ignored, "zoning-as-of-right" principle in her written decision. So now the application is once again before the Randolph zoners.

More interesting is the Judge Wright 180. I’d guess that her course reversal came with her awareness of an increasing level of interest in the case going well beyond Vermont borders, and her understanding that supporting anti-growthers (and "the regulations are irrelevant" lawyer in the State AG’s office) locally doesn’t help her legal reputation nationally. That’s a critical point for a career-oriented upwardly-mobile jurist with Supreme Court ambitions. Her new decision, 180 and all, immunizes her against accusations that she disregards the law to cater to local we-like-things-just-as-they-are politics. And it does so, ironically enough, because public expectations in Vermont are quite different from those elsewhere: in most of the rest of the country, the idea that a land-owner should be allowed to use his lands in ways specifically approved by local zoning would be a main-stream public expectation, even though it isn’t any more, in Vermont. And so, to be a credible candidate for a high-level high-visibility legal assignment, she must demonstrate that she is in tune with widespread, not merely local, public expectations. And so she did with her 180.

The mythical Mr. Dooley ("th ’Soopreme Court follers th’lection returns") would be so proud.

Martin Harris is a former Chairman of Citizens for Property Rights