December 2005b - #1. LAND USE LITIGATION IS DIFFERENT.

• Author: by Jon T. Anderson, Esq.

Vermont Bar Journal

2005.

December 2005b - #1.

LAND USE LITIGATION IS DIFFERENT

THE VERMONT BAR JOURNAL #164, December, 2005, Volume 31, No. 4

LAND USE LITIGATION IS DIFFERENT by Jon T. Anderson, Esq.

The following is a draft of a talk I will present this spring to Vermont Law School interns. During the semester of their internship, students participate weekly in an hour-long discussion of various practice issues. My thinking on this topic is evolving. I would enjoy receiving comments or criticisms from any of you. Land use litigation differs from traditional litigation. This essay identifies at least some of the differences and the resulting differences in approach.

What is

_______Land Use Litigation_______

In land use litigation, a lawyer seeks to permit projects or to block the issuance of permits, depending on which side he or she is on. In Vermont, people mostly litigate over zoning (75-80 percent of Environmental Court cases), Act 250 (20-25 percent) and water issues such as stormwater. Generally, other issues are so straightforward, or technical, that engineers can, or are forced to, resolve them, usually without resorting to a litigation-like process.

For many years, land use litigation in Vermont was as much or more political than legal. People usually did not need to hire proficient lawyers; they did it themselves or hired an engineer or a "permit expediter," or if they got in trouble, a lawyer with what they perceived to be the most political influence, without considering his or her familiarity with land use law or the involved technical issues.

At least two developments now drive people to seek proficient land use lawyers. First, a lack of attention to legal details such as adequate notice and accuracy of representations has led to the revocation or an unfavorable reinterpretation of permits.1

Second, as a result of permit reform, the Vermont Environmental Court now resolves virtually all permit controversies. Hopefully the Court, now comprised of two judges and a full complement of support staff, will continue to judge such controversies based on the law rather than the consideration of policy issues, a practice that led to the demise of the Environmental Board. In fact, land use law may be one of the most legally based areas of law. In general, a landowner can do whatever he or she wants with his or her land unless such activities are clearly prohibited.2 Parole evidence of what a statute or ordinance was intended to say is generally inadmissible.3

Individuals...