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Parker v. Town of Milton12/18/1998
ction, either in the form of a discriminatory legislative classification or selective enforcement of a facially neutral law. There is no state action present if others attending the public information meeting shouted to prevent plaintiffs' representative from speaking. The only possible basis for plaintiffs' claim, therefore, is the decision of the DEC officer to rule their representative out of order. Because there is no discriminatory legislative classification at issue in this case, plaintiffs are presumed to allege something analogous to selective enforcement, i.e., that they were selectively ruled out of order. To sustain a claim of selective enforcement, plaintiffs must show (1) that they were treated differently from others similarly situated and (2) that this selective treatment was based on impermissible considerations such as race, religion, intent to inhibit the exercise of constitutional rights, or malicious intent to injure. See LeClair v. Saunders, 627 F.2d 606, 609 (2d Cir. 1980). Plaintiffs have not indicated that the DEC officer ruled their representative out of order on the basis of any suspect classification or illicit motive. Therefore, plaintiffs have not alleged any facts that suggest there is a basis for granting relief.
III. Plaintiffs' VAPA-based Claims
Plaintiffs' VAPA-based claim fails for the same reason that plaintiffs' due process claim fails, namely, because plaintiffs had no cognizable interest at stake in the proceedings at which the alleged violation occurred. Plaintiffs assert that VAPA was violated because no contested case hearing was held, arguing that 3 V.S.A. § 801(b)(2) requires a contested case proceeding for any licensing proceeding. In fact, section 801(b)(2) merely defines a contested case as "a proceeding, including but not restricted to rate-making and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing." The definitions provided in this section help clarify the statutory sections that follow but impose no legal obligation in and of themselves. Plaintiffs presumably meant to refer to the requirement imposed by 3 V.S.A. § 814(a), which states that " hen the grant, denial, or renewal of a license is required to be preceded by notice and opportunity for a hearing, the provisions of this chapter concerning contested cases shall apply."
The definition of a contested case cited by plaintiffs makes clear, however, that the function of contested cases is to adjudicate the rights of a party to agency action. A party for purposes of the VAPA is defined as "each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." 3 V.S.A. § 801(b)(5). Black's Law Dictionary defines a party as "a person concerned or having or taking part in any affair, matter, transaction, or proceeding." Black's Law Dictionary 775 (6th ed. 1991). Because plaintiffs were not parties to the decision to grant or deny the encroachment permit, they cannot register a demand for a contested case hearing.
Plaintiffs have not alleged a special and substantial injury , nor have they alleged facts sufficient to suggest any conceivable theory of relief under the United States Constitution or the Vermont Administrative Procedures Act. Their claims were properly dismissed.
Affirmed.
FOR THE COURT: Associate Justice
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