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Procedural Issues: Adoption, Amendment,

Enforcement, and Appeals

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Overview • Process is a critical component of land use

planning and administration

• Failure to follow proper process can result in challenges to the legitimacy of land use decisions

• Discussion will focus on

- adopting and amending municipal plans and bylaws

- enforcement of those regulations

- appeals that come as a result of land use decisions

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Adoption and Amendment of the

Municipal Plan • State law strictly prescribes adoption and amendment process

• Law requires planning commission to solicit public comment

• PC must hold at least one public hearing on a proposed plan

• After PC hearing, PC forwards plan to legislative body

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Adoption and Amendment of the

Municipal Plan • PC must prepare written report on proposal addressing the proposal’s compliance with the state planning goals found in 24 V.S.A. § 4302

• Once PC has sent plan to legislative body, legislative body must hold at least one public hearing (more than one if more than 2,500 residents)

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Adoption and Amendment of the

Municipal Plan• State law requires minimal

hearings on adoption of plan

• Most planners find that holding more hearings or informal meetings to involve the public and gain public buy-in is critical

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Adoption and Amendment of Bylaws

(Regulations)• Planning commission drafts bylaws to implement the municipal plan

• PC must prepare a report containing:- How the bylaw furthers the goals of

the municipal plan- Its compatibility with proposed uses

and densities- How it carries out specific proposals

for planned community facilities

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Adoption and Amendment of Bylaws

(Regulations)• Planning commission must hold at

least one hearing to consider bylaw and solicit public comment

• Many planning commissions find that multiple hearings engender greater public support

• PC forwards proposed bylaw to legislative body

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Adoption and Amendment of Bylaws

(Regulations)• Legislative body may make

changes to the proposed bylaw• May only make “minor” changes in

the 14 days preceding the first public hearing

• Any time “substantial” changes are made, legislative body must hold another public hearing

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Adoption and Amendment of Bylaws

(Regulations)• Legislative body adopts bylaw by majority

vote

• Bylaw takes effect 21 days after adoption

• Voters may petition for Australian ballot vote to consider legislative body’s vote

• Voters may petition for initial voting authority, or legislative body may give away by resolution

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Enforcement

• Administrative officer (ZA) enforces land use bylaws

• ZA must administer bylaws literally

• Planning commission or appropriate municipal panel should not be involved in enforcement (unless it is an appeal)

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Initiating Enforcement Proceedings

• ZA may seek enforcement informally

• After issuing notice of violation and waiting seven days, ZA may take further action in Environmental Court or Judicial Bureau

• ZA should always consult with legislative body and municipal attorney prior to taking further action

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Appealing Administrative

Officer Decisions

• Virtually any act can be appealed

• Appeal goes to AMP – usually the development review board or zoning board of adjustment

• AMP must determine if appellant is an “interested person”

• Both appellant and ZA get to present their cases

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Appeals to Environmental Court

• Appeals from AMP are taken by the Vermont Environmental Court

• Appeal is de novo

• Parties are entitled to present new evidence as if no case were heard below

• Practically, judge will inquire as to what happened below to better understand the case

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Appeals to Environmental Court

• No obligation for municipality to participate at this level, though some do

• Some municipalities hire an attorney or designate an official to represent their interests in court

• Mediation is frequently required

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Role of the Legislative Body in

the Appeals Process

• Legislative body has little role at local level

• Though rare, some seek to participate as a party

• Legislative body may make an appearance at Environmental Court

• Legislative body may appeal if the plan or bylaw is at issue

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On the Record Review • Alternative to de novo review

• Municipality must first adopt Municipal Administrative Procedure Act (MAPA)

• Municipality must designate appeals to be heard on the record

• Must audiotape proceedings

• Chair must run an orderly meeting

• Board must write strong, concise decision

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On the Record Review

• Allows decision-making to stay local

• If done well, can eliminate costly appeals

• Municipalities considering MAPA should undertake training to learn the process

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Procedural Issues Summary

• Following proper procedure is crucial

• Land use decisions can be overturned for failure to follow procedure

• Municipalities must be vigilant in understanding what state law requires and should consider education and training in procedural issues