Judge warns proposed change to zoning appeals standing would broaden who can sue

Chief Superior Judge Tom Zote told the Natural Resources & Energy Committee Thursday that draft language in H.479 replacing the current "interested person" test for municipal zoning appeals with a "person aggrieved" standard tied to 24 V.S.A. § 4302 would broaden who can seek review.

"So I want to be very clear. The decisions as to the matters we'll talk about today are policy decisions for the legislation. You will decide how what the appeal look like. ... Wherever you decide that, we will implement, and we will do it in a timely fashion that provides due process to the parties and applies facts to the law that the legislature has," Judge Zote said.

The draft replaces the statutory definition that an "interested person" is someone who owns or occupies property in the immediate neighborhood and can show a physical or environmental impact, or a petition by a group (historically 10 or 20 people). Instead, the bill would treat a "person aggrieved" — someone who alleges an injury to a particularized interest protected by law — as the standard for appeals under 24 V.S.A. chapter 117, and cross-references the long list of goals in 24 V.S.A. § 4302.

Why it matters: Judge Zote said the goals listed in 24 V.S.A. § 4302 (for example, preserving settlement patterns, expanding economic opportunities, and providing safe and efficient transportation) are broad and do not themselves set out protected interests. "If you say to yourself, 'boy, that seems like it might be quite broad' — it is," he cautioned, saying courts would be asked to define those terms over time.

Zoning-standing background: Under current practice the statutory "interested person" test overlaps with constitutional standing. The judge reminded the committee that even under present subsection b(3) or a petition by multiple people, courts have required a particularized injury; the environmental division has dismissed appeals that present only generalized grievances. He cited past decisions (for example, Capital Plaza and Buford-type rulings) as examples where courts required a particularized injury even when the statutory criteria were met.

Committee members pressed Judge Zote on how the change would affect the number of appeals. Judge Zote warned that removing the neighborhood-and-physical-impact requirement would likely increase the pool of people who claim to be "aggrieved" — for example, residents across town alleging economic or other impacts tied to any of the § 4302 goals — and that judges and the appellate process would need time to build case law defining the new boundaries.

Judge Zote also noted the bill's docketing language that would prioritize appeals involving housing development. He said environmental-division judges already try to move housing-related cases quickly and expressed concern about statutory language that explicitly makes certain appeals take precedence on dockets because it could be perceived as ranking the importance of parties' cases. "We can manage it without this language, and I think it works well," he said.

What the committee asked for next: Committee members requested copies of the Capital Plaza and related environmental-division decisions Judge Zote referenced and said they would continue to coordinate with the Senate Economic Development committee, which still had the bill under active consideration.

Ending: Judge Zote emphasized that the committee's choices are policy decisions and that the courts will administer and interpret whatever the Legislature enacts, but warned that expanding standing will likely prompt litigation to clarify the new statutory standard.