Winter 2008 - #11. On the Record Proceedings Before Municipal Panels: A Solution in Need of Fixing.

Author:by David R. Cooper, Esq.

Vermont Bar Journal


Winter 2008 - #11.

On the Record Proceedings Before Municipal Panels: A Solution in Need of Fixing

The Vermont Bar Journal #176, Volume 34, No. 4 WINTER 2008

"On the Record" Proceedings Before Municipal Panels: A Solution in Need of Fixingby David R. Cooper, Esq.In Vermont, hearings before a municipality's planning commission, zoning board, or development review board historically have been relatively informal affairs. Whether participants appear before the panel to propose development, to respond to an alleged zoning violation, to object to a proposed project, they frequently will appear without legal representation and rarely will come armed with much more than a survey or building plans-sometimes only sketch drawings-of the property in question and/or of the work to be done. At the hearing, participants typically will present an unrehearsed narrative describing their reasons for being there. Otherwise, no formal presentation or exhibits are prepared for or submitted at the meeting.

Depending on the type of case and on a party's role in the proceeding, the informality of such proceedings can be either maddeningly frustrating or pleasantly refreshing. For simple permit requests or for applications for conditional use approval, the informal process often works very well, allowing the municipal panel to review the matter in a general fashion to ensure compliance with the town's zoning regulations and town plan, while keeping the applicant's and the town's costs to a minimum.

Where a project is more complex or where it faces determined opposition, however, the efficiency associated with informal review can be compromised. One of the biggest reasons for this is that complex or controversial matters are much more likely to be appealed to the environmental court. More importantly, such appeals typically are entitled to de novo review, or as if the hearing before the municipal panel never happened. New evidence and testimony can be offered to the court, even if it was not presented at the local level. Experts can be retained to opine for the first time on factual issues. Certified plans and surveys can be prepared and admitted as evidence. In essence, when any party appeals a matter to environmental court, everything starts again from scratch. Everything that happened at the local level is rendered moot.

Of course, at local hearings where an appeal is anticipated, the parties likely are keenly aware that all of their efforts will need to be repeated before the environmental court. So, when the applicant presents its case to the local panel, oftentimes the goal is simply to get through the process as quickly and as cheaply as possible so that the "real" proceeding can begin at the environmental court level. Conversely, project opponents can try to use the local proceedings to their advantage in at least two ways. They can seek to prolong the proceeding at the local level, hoping to increase the applicant's costs, thereby either torpedoing the project or at least gaining leverage in settlement negotiations. Or, opponents can attempt to "sandbag" a project-that is, they can wait in the wings during the local proceedings, allowing the applicant to present a complete case (believing that the project does not face stern opposition and that a favorable decision will not be appealed), and then appeal the panel's decision to court, forcing the applicant to start all over in a de novo hearing.

In 1993, the Vermont legislature enacted a bill (H.871) that, in part, sought to address some of these inefficiencies at the local level. This legislation gave municipalities the option of designating certain types of cases for more formal proceedings at the local level. Once a final decision is rendered in such cases, any appeal of the matter would be based on the record developed by the municipal panel. In other words, any such...

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