Housing Appeals Board (H.647) - Feb 7, 2024

Judge Walsh introduced himself to the House General Committee and highlighted his 18 years as an attorney after being an engineer. For six years he represented the former Environmental Board and was also in private practice. His experience goes back to before Act 100 and the appeals process.

He noted that it is rare that parties come to judges and ask for the process to move quicker. Sometimes there is mutual agreement to set a pre-trial schedule. Most often he finds these acceptable and approves of them, but in some cases, there is disagreement and so he has to balance interests against reasonable timeframes.

He believes the present system has room in it to move projects faster; the court does not set limits on making motions or undertaking discovery. The client can demand the attorney move along more quickly and so will the process.

NOTE: This may be because of the burden of proof in the current system. There is often a lot of fact-finding that needs to be done by developers when someone appeals.

Walsh heard about the Woodstock housing project that took nine years. He sought the files, but they are archived so he was unable to learn much. He wanted to hear of any more recent examples that are as egregious, saying that he does what he can to keep the process moving.

Of the 27 housing appeals in 2023; 11 were 2-9 lot subdivisions, 10 were single unit development (single family or ADU), 2 were 2-unit developments, 2 were 9-unit apartment buildings, 1 was a 27-unit multi-family and 1 was a 78-unit housing mixed use project.

Of these…

  • Sixteen were disposed of in five months or less.
  • One in was disposed of at six months.
  • One went to trial at six months.
  • One went to trail after nine months.
  • Two appeals are awaiting transcription services.
  • The 27-unit is poised for a summary judgment within about 7-8 months.
  • The 78-unit is on hold pending the Act 250 appeal to have Municipal appeal trial together.
  • Four projects arrived so late in 2023 it is too soon to tell how long they will take.

Chairman Stevens was interested in Walsh’s comment that there is “room in the system to speed things up.” He wondered what elements were available.

Walsh sees appeals filed and initial status conferences about 30 days after the initial finding. He often asks them if they have spoken to the other parties, so they might have an idea how to “efficiently resolve this.” He noted that was often wasted time because they could have communicated and already have ideas for a settlement at the initial status conference.

He commented that the addition of judges isn’t a direct answer because some procedures simply take time; more judges with experience are retiring but being replaced by younger judges.

The Environmental Board (9 members) used to hear appeals. He was Counsel there for six years before Governor Douglas reformed the appeals process and consolidated it to the Environmental Division. Back then they resolved in six months, but the disposition guidelines for the Environmental Division De Novo judicial appeals is about ten months.

A quasi-judicial board has a chance to take off a month or two, he thought, but they would lose the ability to coordinate all appeals in a single trial. He pointed to a recent 200-page decision for nine Appeals (in a single case) after a five-day coordinated trial.  That would likely be lost to the quasi-judicial board and then head to court anyway, he believed.

Gus Seelig (Executive Director, Vermont Housing and Conservation Board) was up next. He is in favor of the Housing Appeals Board (HAB) idea and wants to see progress; most of the appeals he sees are municipal and in Putney today they are two years delayed already.

Appeals are costly, he noted, and they diminish the impacts VHCB has with the funds given to them by the Legislature.

Ted Brady (Executive Director, Vermont League of Cities and Towns) argued that “all towns want housing, but some are more specific about where they want housing in their town.”  He is agnostic on some items in the H.647 but supports the “democratic process” and “rigor” of planning and zoning. Public discussion is very “treasured” by his members.

Appeals are troublesome for some and turn out decisions they don’t like but the HAB idea may not change these “occasional disappointments.” He seemed to favor the current system but making it more efficient. The most important thing for his members is that “the people who hear the appeals are qualified and know what the heck they are talking about.”

Brady admitted that his members feel that “appeals happen too often and for reasons that are unreasonable… state law allows for frivolous appeals.” They happen “too often and for reasons that are unreasonable.”

They strongly support moving away from the “rule allowing any ten people coming in and stop a project.” They believe there is no reason that “a democratic process” should be “held hostage” by ten people in an appeal process. He added that often appeals are about making a developer change their plan because they don’t like it, not because it is against the rules.

The Vermont League of Cities and Towns does not feel strongly that the HAB would achieve much but they do want to make the process work better.

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