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Chief Superior Judge: Vermont environmental docket moving faster; proposed standing changes would expand who may sue
Summary
Chief Superior Judge Tom Zoney told the House General and Housing Committee that environmental-division municipal appeals are being resolved faster than in prior years, and he warned that a drafting change to standing in the committee draft would expand who can appeal municipal land-use decisions.
Chief Superior Judge Tom Zoney told the House General and Housing Committee on Thursday in February that the state’s environmental division is disposing municipal appeals more quickly than in recent years, but that changes to standing in the committee draft would broaden who may bring appeals.
Zoney said he has reviewed draft 5.1, section 9, and told the committee that the environmental division’s clearance rate exceeded 150% over the past year, meaning the division disposed of more cases than it received. "In 2024 . . . the average time to disposition . . . for the ones that have been resolved . . . was 123 days," he said; by comparison he said the division’s 2023 average was 190 days. He added that, if parties are ready for trial, the court can schedule a short trial within about 30 days.
Those performance figures matter because the committee is considering a draft provision that would tell courts to prioritize municipal appeals. Zoney said the judges already prioritize cases and that the suggested statutory language on prioritization "does not add to current law because this is what they're doing anyway." He also warned the committee to weigh the policy implications of prioritization across case types.
The judge spent substantial time discussing proposed changes to standing in the draft. He explained that the draft’s insertion of an "or" between two prongs would create two separate classes of persons with standing, rather than a single two-pronged class. "By adding 'or,' you're creating two separate classes of people who have standing," Zoney said. He described a trade-off: if the committee removes a provision that allowed groups of residents (previously drafted as "any 20 persons") but also adds an "or" expansion in another section, the net effect could be to expand who can appeal.
Zoney referenced a 2019 decision by Judge Walsh in the Capital Plaza Subdivision case, which he said required appellants to demonstrate constitutional standing. He described that decision as interpreting the existing statutory language to require more than a numerical threshold: "constitutional standing requires a particular injury caused by the other party's conduct that is capable of redressed by the court." Zoney said Judge Walsh’s approach required each joining appellant in the group to demonstrate standing.
Committee members asked whether the draft’s changes were intended to expand or narrow standing. Zoney said the change as written would expand standing unless the committee also narrows other subsections. He recommended either (a) keeping the current text in Section 3 and narrowing Section 4 by replacing the 20-person threshold with a requirement that any person demonstrate a "particularized interest," or (b) explicitly codifying the Walsh approach if the committee intends to narrow standing.
The committee did not take a formal vote on any amendment during Zoney’s appearance. Committee staff and members indicated they would circulate the Walsh decision and consider redrafting standing language based on the committee’s policy choice.
What happens next: Zoney offered to provide the committee with the cited Walsh decision and asked to be notified if attorneys or developers report scheduling problems in the environmental division. The committee continued its markup work after his testimony.
