Witness urges requiring legal standing, planning tie-ins and rejects punitive attorney-fee penalty in zoning appeals

The House General and Housing Committee heard testimony Feb. 25 on appeals of local land-use and housing permits, with John Grobman, policy and water program director for the Vermont Natural Resources Council, urging changes to who may appeal and how appeals are reviewed.

Grobman told the committee that Vermont’s current appeals system often restarts fact-finding when cases reach the Environmental Division of the Vermont Superior Court, a procedure known as de novo review. “When there is an appeal to the court, it doesn't matter what happened before at ANR, it doesn't matter what happened before the district commission, it doesn't matter what happened before the zoning authorities. You start all over again in court,” he said.

That de novo process, Grobman said, increases cost and delay because parties can introduce new evidence, conduct discovery and litigate procedural fights. He said the change to put environmental appeals in the court took place in February 2004 and that Vermont now is unusual nationally for de novo review of some technical ANR permitting decisions.

Why it matters: the committee is weighing changes prompted by Act 181’s land-use reforms and an administration proposal on zoning appeals. Grobman recommended the Legislature wait for an upcoming, mandated appeals study but offered interim fixes the committee could consider this year: replace the 20-person petition rule with a requirement that appellants show legal standing, and limit appeals in mapped housing-growth areas where towns and regions have identified preferred locations for housing.

Currently, Grobman said, a group of 20 residents may secure party status in a zoning appeal by signature alone; they need not show they will be harmed. “Get rid of the petition. Get rid of any 20 people who don't have to show they have any harm at all and just go with — you have to show you have standing. You have to show that you're injured,” he said. He described standing as a showing of a particularized, concrete injury to property or quality of life rather than a generalized objection to development.

Grobman and committee members discussed alternatives that have been proposed in prior years, including a switch to a percentage-based petition (for example, 20% of a town) or the adoption of standing rules already used in Act 250 and ANR permitting. He said standing is typically tested early in litigation and can reduce the number of full appeals that proceed to trial.

On tying appeals to municipal or regional planning, Grobman said there is merit in limiting appeals for projects located inside areas where towns and regions have already mapped and endorsed housing growth. Under that approach, an appellant would need to show a project “substantially departs” from the community plan to proceed. He suggested any such limitation include a sunset — he and supporters proposed about two years — so the rule could be revisited after the tier-mapping and exemption process called for in Act 181 is complete.

Grobman also urged caution on a separate administration proposal that would impose attorney-fee penalties on losing appellants. He told the committee that the draft language omitted a requirement found in the Washington statute the administration cited — proof of “actual malice” or bad faith — and that without such a standard a fee-shifting penalty could chill legitimate appeals. “We don't support” the attorney-fees provision as drafted, he said, adding it could effectively bar lower-income residents and advocacy groups from appealing.

Other details raised in the hearing: appeals of local land-use decisions must be filed within 30 days of the decision; Vermont allows some towns that adopt the Municipal Administrative Procedure Act (MAPA) to have on-the-record zoning review, but only a small minority of towns have chosen that path; and the Environmental Division’s workload increased after courts absorbed multiple specialized boards in 2004, a change that expanded the court’s docket without what Grobman described as proportional additional resources.

Committee members asked clarifying questions during and after Grobman’s presentation about the difference between participation in the municipal permit process and participation in planning. Grobman noted that existing law already requires parties seeking later review of permits to have participated in the permitting process below — for example, by commenting at the zoning hearing — and that the planning-linked appeals limitation would be a separate policy choice requiring clear statutory mechanics.

The committee did not take formal action during the session. Members said the appeals topic will be part of continued consideration, with a broader study of appeals under Act 181 expected to provide recommendations for future legislation.