Bill Summary – FastDemocracy

BILL AS INTRODUCED                                                        H.647
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                                      H.647
 Introduced by Representative Stevens of Waterbury
 Referred to Committee on
 Date:
 Subject: Housing; municipal and county government; municipal zoning;
          zoning appeals
 Statement of purpose of bill as introduced: This bill proposes to establish a
 Housing Board of Appeals to hear appeals of zoning decisions related to the
 construction of housing.
    An act relating to creation of the Housing Board of Appeals
 It is hereby enacted by the General Assembly of the State of Vermont:
 Sec. 1. 24 V.S.A. chapter 116 is added to read:
              CHAPTER 116. HOUSING BOARD OF APPEALS
 § 4201. BOARD ESTABLISHED
    (a) Board established. There is established a Housing Board of Appeals to
 hear appeals of municipal zoning decisions on housing projects. The Board
 shall be composed of three members who shall be experienced in land use law
 or housing development, or both. At least one member shall be an attorney
 licensed to practice law in the State of Vermont, and at least one member shall
 be either a professional engineer or land surveyor. The members of the Board VT LEG #372386 v.2
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 shall be full-time employees and shall not engage in any other employment,
 appointments, or duties during their terms that is in conflict with their duties as
 members of the Board.
    (b) Terms; chair. The members of the Board shall be appointed by the
 Supreme Court for a term of five years and until their successors are appointed
 and qualified; provided, however, that any vacancy on the Board shall be filled
 for the unexpired term. The initial members of the Board shall serve staggered
 terms of three, four, and five years. The Supreme Court shall designate one
 member as chair to serve in that capacity for the duration of the member’s
 term.
    (c) Removal. Any member may be removed by the same authority for
 inefficiency, neglect of duty, or malfeasance in office. Before removal, the
 member shall be furnished with a copy of the charges and have an opportunity
 to be heard in defense.
    (d) Salary. Each member of the Board shall receive the same annual salary
 as a Superior Court Judge and reasonable expenses, including transportation.
    (e) Duties.
         (1) The Board shall have power and authority to hear and affirm,
 reverse, or modify, in whole or in part, appeals of final decisions of appropriate
 municipal panels regarding questions of housing and housing development.
 This shall include decisions on municipal zoning permits, subdivisions,
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 variances, and other municipal permits and fees applicable to housing and
 housing developments.
       (2) Matters subject to the Board’s authority may include mixed-use
 combinations of residential and nonresidential uses, which may occur on
 separate properties, provided such properties are all part of a common scheme
 of development.
       (3) In exercising its authority under this chapter, the Board shall have
 the power to award all remedies available to the Superior Court in similar
 cases, including permission to develop the proposed housing.
       (4) After local remedies have been exhausted, an appeal may be brought
 before the Board by the applicant or by any other person aggrieved as defined
 in 10 V.S.A. § 8502. The municipality shall be a party to the action. If the
 applicant is not the party initiating the action before the Board, then the
 applicant shall automatically be an intervenor.
       (5) The Board shall have authority to administer oaths and to compel the
 attendance of witnesses to proceedings before it. The Board shall have the
 power to subpoena and subpoena duces tecum. A subpoena or subpoena duces
 tecum of the Board may be served by any person designated in the subpoena or
 subpoena duces tecum to serve it. Any testimony given by a person duly
 sworn shall be subject to the pains and penalties of perjury. All applications or
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 petitions to the Board for which no filing fee has been otherwise specified by
 statute shall be accompanied by a $250.00 filing fee.
    (f) Quorum; disqualification; temporary members. In all matters, a
 majority of the Board shall constitute a quorum to transact business. No
 member of the Board shall represent a party or testify as an expert witness or
 render any professional service for any party or interest before the Board, and
 any member having an interest in the subject matter shall be disqualified to act.
 In the event of a disqualification or temporary disability of a member or
 members of the Board, the Board shall appoint any temporary Board members
 as shall be necessary. Temporary Board members shall serve with respect to a
 matter until the same has been fully disposed of before the Board. Temporary
 Board members shall have the same qualifications as regular Board members
 in whose place they are acting. A temporary Board member shall be
 compensated at the rate of $75.00 for each day devoted to the work of the
 Board and shall be reimbursed the necessary and reasonable expenses incurred
 in the performance of the temporary Board member’s duties. In the event of a
 vacancy on the Board, the appellant may elect to continue the proceedings
 while awaiting the appointment of a successor Board member.
    (g) Staff and office. The Board shall have such clerical, administrative, and
 technical staff as may be necessary. The Board shall have an office in which VT LEG #372386 v.2
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 its records, documents, and books shall be kept and with a suitable room in
 which it may hold hearings.
 § 4202. HOUSING APPEALS
    (a) In matters within its authority, the Board shall have concurrent,
 appellate jurisdiction with the Superior Court. Any party seeking to appeal a
 municipal zoning decision on a housing project shall bring the appeal to the
 Board. The decision to bring an appeal before the Board shall be deemed a
 waiver of any right to bring an action in the Superior Court but shall not
 abrogate any party’s right to appeal decisions of the Board to the Supreme
 Court; as such, the Board shall retain jurisdiction of any matter originally
 brought before it. At any time during an appeal to the Board, if the Board
 determines that it does not have jurisdiction to hear the appeal, the appellant
 shall have 30 days to file an appeal with the Superior Court.
    (b) In an appeal of a local decision on housing or housing development,
 any claim that is within the Board’s authority and that has previously been or is
 subsequently included in an appeal in Superior Court by another party to the
 decision or by any other aggrieved or injured party who can demonstrate legal
 standing to appeal shall automatically be stayed by the court to provide the
 party with standing the opportunity to intervene in the matter before the Board.
 If intervenor status is granted, the stay of the court action regarding those
 claims shall continue during the pendency of the appeal to the Board. After the VT LEG #372386 v.2
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 Board has decided the appeal, the court shall dismiss the matter before it to the
 extent the matter has been resolved by the Board. Any claim included in an
 appeal to Superior Court that is not within the Board’s authority shall not be
 subject to automatic stay by the court.
    (c) Appeals shall be filed with the Board within 30 days following the final
 decision of the appropriate municipal panel. At the same time an appeal is
 filed with the Board, the applicant shall notify the appropriate municipal panel
 of the appeal.
    (d) The appropriate municipal panel shall within 30 days following receipt
 of notice of appeal submit to the Board a certified record of its proceedings on
 the matter subject to the appeal.
    (e) The Board shall serve notice in writing of the time, place, and cause of
 any hearing upon all parties at least 20 days prior to the date of the hearing.
    (f) The Board shall hold a hearing on the merits within 90 days following
 its receipt of a notice of appeal.
    (g) The Board shall make a decision on an appeal within 60 days after
 conducting a hearing on the merits.
    (h) Appeals to the Board shall be consistent with appeals to the Superior
 Court. Appeals shall be on the certified record, and except in such cases as
 justice may warrant, in the sole discretion of the Board, no additional evidence
 will be introduced. The rules of evidence shall not strictly apply. The Board VT LEG #372386 v.2
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 shall record the proceedings of any hearing before it and shall make such
 recording available to the public for inspection and recording from the date of
 the hearing to a date that is 15 working days after the Board has made a final
 decision on the matter that is the subject of the hearing, or, if an appeal is made
 from such decision, the date upon which the matter has been finally
 adjudicated, whichever date is later.
    (i) The Board shall not reverse or modify a decision except for errors of
 law or if the Board is persuaded by the balance of probabilities, on the
 evidence before it, that said decision is unreasonable.
    (j) Nonattorneys, including professional engineers, architects, and land
 surveyors, may represent any party before the Board. Nothing in this section
 shall prevent the Board from denying representation by any individual it deems
 to be improper, inappropriate, or unable to adequately represent the interests of
 the applicant.
    (k) The Board’s deliberative processes in adjudicatory proceedings shall be
 exempt from the public meeting and notice provisions of 1 V.S.A. chapter 5.
 Decisions and orders in adjudicatory proceedings shall be publicly available,
 but only after they have been reduced to writing, signed by a quorum of the
 Board, and served upon the parties, and shall set forth the Board’s rulings of
 law and findings of fact in support of its decisions. Discussions and actions by
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 the Board concerning procedural, administrative, legal, and internal matters
 shall be exempt from the meeting and notice provisions of 1 V.S.A. chapter 5.
 § 4203. RULES
    The Board shall adopt rules under 3 V.S.A. chapter 25 necessary for
 carrying out its functions including rules of procedure to be followed in
 hearings conducted by it consistent with the provisions of this chapter.
 § 4204. APPEALS TO SUPREME COURT
    Decisions of the Board may be appealed to the Supreme Court by any party
 in accordance with 10 V.S.A. § 8505.
 § 4205. ENFORCEMENT
    (a) After a decision of the Board becomes final, the Board shall, at the
 request of any party, file a certified abstract in the Superior Court. The clerk of
 the court shall enter judgment and such judgment may be enforced as with any
 final judgment of the Superior Court.
    (b) Neglect or failure on the part of any municipality to comply with such
 orders shall be deemed willful neglect of duty, and it shall be subject to the
 penalties and damages provided by law in such cases.
 Sec. 2. 10 V.S.A. § 8503 is amended to read:
 § 8503. APPLICABILITY
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    (c) This chapter shall govern all appeals arising under 24 V.S.A. chapter
 117, the planning and zoning chapter, except those appeals brought to the
 Housing Board of Appeals pursuant to 24 V.S.A. chapter 116.
                                       ***
 Sec. 3. 10 V.S.A. § 8504 is amended to read:
 § 8504. APPEALS TO THE ENVIRONMENTAL DIVISION
                                       ***
    (k) Limitations on appeals. Notwithstanding any other provision of this
 section:,
       (1) there shall be no appeal from a District Commission decision when
 the Commission has issued a permit and no hearing was requested or held, or
 no motion to alter was filed following the issuance of an administrative
 amendment;
       (2) a municipal decision regarding whether a particular application
 qualifies for a recorded hearing under 24 V.S.A. § 4471(b) shall not be subject
 to appeal;
       (3) if a District Commission issues a partial decision under subsection
 6086(b) of this title, any appeal of that decision must be taken within 30 days
 of following the date of that decision; and VT LEG #372386 v.2
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       (4) there shall be no appeal from an appropriate municipal panel when
 the appellant brings the appeal to the Housing Board of Appeals established
 pursuant to 24 V.S.A. chapter 116.
                                       ***
 Sec. 4. 10 V.S.A. 8505 is amended to read:
 § 8505. APPEALS TO THE SUPREME COURT
    (a) Any person aggrieved by a decision of the Environmental Division
 pursuant to this subchapter, any party by right, or the Board, or any person
 aggrieved by a decision of the Housing Board of Appeals may appeal to the
 Supreme Court within 30 days of following the date of the entry of the order or
 judgment appealed from, provided that:
       (1) the person was a party to the proceeding before the Environmental
 Division or the Housing Board of Appeals; or
       (2) the decision being appealed is the denial of party status; or
       (3) the Supreme Court determines that:
          (A) there was a procedural defect that prevented the person from
 participating in the proceeding; or
          (B) some other condition exists that would result in manifest injustice
 if the person’s right to appeal were disallowed.
    (b) An objection that has not been raised before the Environmental
 Division or the Housing Board of Appeals may not be considered by the VT LEG #372386 v.2
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 Supreme Court, unless the failure or neglect to raise that objection is excused
 by the Supreme Court because of extraordinary circumstances.
                                       ***
 Sec. 5. HOUSING BOARD OF APPEALS POSITIONS;
         APPROPRIATION
    (a) The following new positions are created at the Housing Board of
 Appeals for the purposes of carrying out this act:
       (1) three full-time Housing Board of Appeal members; and
       (2) one Staff Attorney 1.
    (b) The sum of $600,000.00 is appropriated to the Housing Board of
 Appeals from the General Fund in fiscal year 2025 for the positions established
 in subsection (a) of this section and for additional operating costs required to
 implement the appeals process established in this act.
 Sec. 6. HOUSING BOARD OF APPEALS CREATION
    The Supreme Court shall appoint the members of Housing Board of
 Appeals on or before July 1, 2025.
 Sec. 7. EFFECTIVE DATE
    This act shall take effect on July 1, 2024.
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Statutes affected: 
As Introduced: 10-8503, 10-8504, 10-8505