House committee reviews bill to create statewide Housing Board of Appeals

Legislative counsel Elle Jankowski told the House Committee on General & Housing on Feb. 12 that H.42 would create a new, independent Housing Board of Appeals to hear municipal zoning appeals for housing projects.

The bill would establish a three-member, full-time board appointed by the Vermont Supreme Court, require at least one attorney and one professional engineer or land surveyor among members, and give the board authority to hear appeals of municipal zoning decisions, subdivisions, variances and other municipal permits and fees applicable to housing. Jankowski said the bill is modeled on New Hampshire law but would require edits to conform to Vermont practice: "If anything, there were some typos in last year's that I fixed, but I don't think I made any perfect substantive changes... This is actually modeled almost identically from the New Hampshire statute."

Committee members pressed Jankowski on key scope and procedural matters. She said the board would cover zoning decisions for towns that have municipal zoning—roughly "slightly more than half" of Vermont towns, a figure she estimated in the 110–130 range—so H.42 would not apply in towns lacking municipal zoning or where there are no formal on-the-record hearings. "So this is zoning decisions only," Jankowski said, adding that building permits and design review could be encompassed depending on how a town structures its permitting process.

The bill would make the Housing Board the required initial forum for covered housing appeals, with parties deemed to have waived the right to bring the same appeal in Superior Court if they file with the board. The board's decision could be appealed to the Vermont Supreme Court. Jankowski outlined procedural timelines in the draft: an appeal would be filed within 30 days of a municipal final decision, the municipal panel would have 30 days to provide a certified record, the board would give 20 days' notice of a hearing and hold a hearing within 90 days of filing, and issue a written decision within 60 days after the hearing. Jankowski summarized the practical result: "So that's 6 months... And then it goes to the Supreme Court 30 days, 7 months."

Committee members raised several implementation questions. They asked how the bill would affect towns that do not keep certified on-the-record records of municipal hearings; Jankowski said most Vermont towns do not produce certified records and that the bill could require towns to produce more formal records for appeals. Members also questioned the standard of review under the bill. The draft combines elements of on-the-record review and the ability to take witness testimony; Jankowski described the result as potentially ambiguous and said the standard of review language would need work to conform to Vermont practice: "There is language that needs to be changed to conform to Vermont." She said the provision in the draft that the board may reverse or modify a decision "except for errors of law or if the board is persuaded by the balance of probabilities" aligns with a reasonableness/abuse-of-discretion approach rather than a de novo standard.

Jankowski described administrative and budgetary consequences: three full-time board members paid at the salary of a superior court judge (she cited roughly $168,000 per judge) plus at least one staff attorney and clerical support, office space and recording capacity. Her rough estimate for staff and member salaries and initial operations was in the $600,000–$700,000 range and she recommended more detail be developed in the appropriation language and appointment procedures if the committee advances the bill. The draft also directs the Supreme Court to appoint board members by July 1, 2026—an appointment mechanism committee members noted the Court does not currently follow for similar boards and which would require developing a procedure.

Why it matters: supporters have argued a specialized board could standardize and speed housing appeals; committee members responding to Jankowski's briefing flagged significant open technical questions about which appeals would be covered, how records would be produced, whether the new board would receive de novo or on-the-record review, how quickly cases could be decided in practice and how much the board would cost to stand up.

Committee members asked staff to coordinate with the Land Use Review Board's ongoing study of appeals and to return more precise information about how many Vermont towns maintain municipal zoning and formal records. Jankowski recommended further drafting to adapt New Hampshire language to Vermont statutory practice and to clarify timelines and standards of review.

The committee did not take a vote on H.42 during this hearing.