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

Article written by David R. Cooper
Posted on Jun 30, 2011

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, etc., 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 refreshingly “small town” and appropriate. For simple variance 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 informal review at the municipal level can break down. One of the biggest reasons for this is that complex or opposed matters are much more likely to be appealed to the environmental court and, more importantly, such appeals typically are entitled to de novo review. This means that the court processes the matter 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 meaningless.

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 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 decision was 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 matters designated for “on the record” appeals would not be entitled to a de novo review by the environmental court. This option, codified at 24 V.S.A. § 4471(b), allows a town’s voters or legislative body (usually its select board) to implement on the record proceedings by taking the following, minor steps: (i) provide that appeals of certain appropriate municipal panel determinations shall be on the record; (ii) define what magnitude or nature of development proposals shall be subject to the production of an adequate record by the panel; and (iii) adopt the municipal administrative procedures act to govern all on the record proceedings.

Although enacted fifteen years ago, towns have been slow to implement the program. The environmental court did not hear its first on the record appeal until 2001. As of the time of this writing, only eight towns have adopted on the record proceedings; they are: Brandon, Castleton, Ludlow, Middlebury, Montgomery, Randolph, Stowe, and Windsor. However, it appears that the program is slowly gaining momentum. Two towns have implemented the program within the past three years, and the environmental court has scheduled a workshop this coming Fall with town administrators, panel members, lawyers, and other interested persons to discuss this topic (among others).

The consequences of becoming an on the record town are significant. As mentioned, with respect to de novo appeals, the environmental court stands in the place of the local panel, and looks anew at the application as if no decision had been rendered below. See Stowe Highlands, Docket No. 184-8-08 Vtec (Envtl. Ct., Nov. 2, 2006). By contrast, under 24 V.S.A. § 4472, if the appeal to the environmental court is on the record, the court sits as an appellate court, tasked only with determining whether the municipal panel’s decision is supported by substantial evidence submitted and weighed at the local level. See id. In effect, by adopting on the record proceedings, the local panel becomes a quasi-judicial administrative agency – or, in essence, a trial court.

The idea behind the legislation is to remove the redundancy of having two separate evidentiary hearings on the same project. The municipal board becomes the trial court, the environmental court becomes the intermediate appellate court, with further review available before the Vermont Supreme Court. Assuming the program works as intended, there is little doubt that it will create a more efficient process, reducing both the costs and the time needed to obtain a final resolution of a contested matter.

In practice, however, it is not clear that greater efficiency is being achieved. For one thing, the members of municipal panels may not be fully prepared for the additional procedural demands of quasi-judicial proceedings. On the record proceedings before a municipal panel are governed by the municipal administrative procedures act (“MAPA”), set forth at 24 V.S.A. § 1201, et seq. MAPA grants procedural rights to participants and imposes duties on municipal panels when conducting contested hearings. “MAPA requires a more purposeful adherence to procedure including (but not limited to) the swearing in of all witnesses, [and] an audio or video recording of all hearings sufficient to allow a transcript to be produced.” In re Miller Conditional Use Application, Docket #59-3-07 Vtec (Vt. Envtl. Ct., Nov. 5, 2007); see also In re George Dunnett, 172 Vt. 196, 199, 776 A.2d 406, 409 (2001). Decisions must be more formal, on par with judicial opinions, including detailed findings of fact and conclusions of law. As mentioned, in order to participate in the decision on the matter, a member of a municipal panel must attend all hearings on that matter. If a member is absent, he cannot vote on the matter unless he reviews the record of the missed meeting. Failure to abide by any of these additional procedures can subject the proceeding to challenge on appeal.

From the perspective of the parties appearing before municipal panels in these proceedings, challenges also exist. The first and most critical challenge facing participants is simply learning whether a given proceeding will be held on the record and, if so, what legal implications this may have on them and their proposed project. On the record proceedings can be implemented by a simple resolution of the town’s legislative body, and nothing in the statute requires towns to notify the public that this has occurred. Although one might expect the nature and implications of on the record proceedings to be set forth in detail in a town’s zoning regulations, this is not the case. The towns of Montgomery and Stowe, for instance, acknowledge that proceedings shall be held on the record, but essentially cut and paste the provisions of MAPA into their zoning regulations, and do not discuss the impact to participants’ rights on appeal to the environmental court. The zoning regulations of several participating towns do not even mention that on the record proceedings have been adopted.

Moreover, it does not appear to be common practice for the municipal panel to announce prior to a hearing whether it will be conducted on the record. To my knowledge, the only list of towns that have adopted on the record proceedings is an informal one maintained by the clerk of the environmental court, and the only way to be certain that any particular hearing will be held on the record is to affirmatively ask the panel’s chair or the zoning administrator. However, the burden falls upon each participant to inquire as to whether a given proceeding will be conducted on the record as enabled under section 4471. It is important to do this well in advance of the hearing, because the care with which one must prepare and present one’s case before the municipal panel will change significantly depending on the answer.

Another challenge facing the participants and the municipal panel is to determine the formality with which the hearing must be conducted, and the tools and procedures that are available to the participants, especially the tools of discovery. As mentioned, the provisions of MAPA must be observed. However, MAPA is extremely vague (if not entirely silent) as to how on the record proceedings actually will be conducted. For example, Section 1206 of MAPA (“Evidence”) provides that “the rules of evidence as applied in civil cases in superior courts of this state shall be followed”, and also that, “when necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible under those rules may be admitted if it is of a type commonly relied upon by reasonably prudent people in the conduct of their affairs.” This is the same standard applicable to hearings before administrative agencies. See 3 V.S.A. § 810. Nothing in MAPA, however, defines the extent of discovery available in on the record proceedings. For example, it is not clear whether parties can subpoena witnesses, take depositions, or demand responses to interrogatories or requests for admission. Contrast such silence with Rule 2(c) of the Environmental Court Rules, which provides that the court will hold a pretrial conference and thereafter shall establish the type, sequence, and amount of discovery available under the Vermont Rules of Civil Procedure. Arguably, because on the record proceedings essentially deny the participants an evidentiary hearing before the environmental court that otherwise would be available, the court’s rules should govern the municipal proceedings. Nothing in the law says this, however. It is unlikely that municipal panel members conduct on the record proceedings believing themselves to be operating under the environmental court’s rules.

Setting aside the question of what tools are available, another question is whether the participants to these hearings (not to mention the panel members themselves) are capable of using them. As mentioned, many parties participate in municipal hearings without legal counsel, and while most towns have legal counsel, they are not always present at hearings. On the record proceedings establish a legal framework intended to mirror proceedings before the environmental court, but it is not clear that either the participants or the panel members are equipped to operate within it.

What seems reasonably clear is that, on appeal, the environmental court’s options are fairly limited if it determines that the municipal panel made a procedural mistake that amounts to reversible error. Because the environmental court serves only in the capacity as an appellate court in these types of matters, and cannot receive evidence, the court generally will be forced to remand such matters back to the municipal panel to rectify the errors.

Over the past two years, there have been 17 on the record appeals to the environmental court. Of those 17 matters, 12 have been disposed of in some fashion, with 5 remaining active. Of the 12 disposed cases, at least 5 have been remanded to the municipal panel for further proceedings. Not all of these remanded cases have involved a published opinion, so the reasons for the remand are not clear in every instance. However, to the extent that on the record hearings cause or lead to additional and collateral proceedings, the primary purpose of such hearings is undermined. The whole point of the on the record legislation was to eliminate two separate evidentiary hearings. If parties work their way through the additional rigors of on the record hearings at the municipal level only to find themselves back before the municipal panel because the panel is not adequately equipped to serve in a quasi-judicial capacity, then obviously the intended benefits have not been realized.

The on the record program holds promise, as it seeks to address the undeniable problem of requiring many projects to undergo two separate and independent evidentiary hearings. However, there are several critical steps that need to be taken to prevent on the record proceedings from creating even greater inefficiency and unfairness. First and foremost, a participating town should be required to include in its zoning regulations not only notice that it has adopted on the record proceedings, but also a clear and thorough explanation of the associated legal implications.

Second, the additional costs and burdens of on the record proceedings are justified only with respect to relatively complex cases that likely will be appealed. Accordingly, towns should not adopt such proceedings across-the-board for all matters (as appears to be the case in all but one participating town), but rather should reserve them only for the more complex projects and disputes. For example, a town could designate for on record proceedings those applications involving a certain large number of lots or acreage, exceeding a certain designated cost threshold, or proposing development in certain particularly sensitive zoning districts. For all other matters, the traditional, informal process likely will prove significantly more efficient without jeopardizing the town’s regulations or any party’s rights.

Third, all members of municipal panels overseeing on the record proceedings should be required to attend training seminars and workshops on legal procedure so as to minimize remands from the environmental court on procedural errors. Finally, either the legislature should amend MAPA, or towns should revise their zoning regulations, to set forth in detail the types and scope of discovery and other evidentiary tools that will be available in proceedings held on the record.

The on the record program is a good one. The above steps are needed, however, to prevent it from worsening the problems that it was intended to solve.

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