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VSC Zoning Decisions: Highlights of Three Recent Cases

January 06, 2025

The Vermont Supreme Court (VSC or the Court) has recently issued three rulings on land use related cases that reaffirm our understanding of best practices to ensure enforceable local permitting decisions. One has been sent back (remanded) to a lower court, and we will keep you updated on how it’s resolved. For now, here are the takeaways: 

  • Zoning bylaws must be clear and specific to accomplish the town’s intent. Any lack of clarity will be resolved in favor of the owner/applicant. See this Williston case in which the Court allowed a dog kennel to operate as a home business with outdoor activities when the town tried – but failed – to craft the regulations in a way that would prohibit all outdoor activity for home businesses: In re Pederzani Administrative Appeal, 2024 VT 82, 24-AP-074. 
  • An evaluation of private property rights by the Environmental Division of Vermont Superior Court (Environmental Division) may be necessary to issue a subdivision permit where the applicant does not have frontage on a public road. In a very fact-dependent case, the Court determined that the Environmental Division must evaluate the existence of an easement or right of way when reviewing a subdivision permit based on the existence of a permanent easement or right of way. Contrasting this case with others where the Environmental Division does not have jurisdiction over deciding private property rights, the Court explained that the Environmental Division has jurisdiction to decide questions of private property rights where the existence of an easement is the very question before them. The Court sent the case back to the Environmental Division to decide the question of whether the applicant has a legally binding easement or right of way as required for the subdivision of property. See In re Ranney Dairy Farm, LLC Major Subdivision Appeal-Westminster DRB Permit No. 21-70, 2024 VT 66, No. 24-AP-009.  

Vt Supreme Court Allows Human Rights Commission’s Case Against St. Johnsbury to Proceed

December 11, 2024

The Vermont Supreme Court (Court) recently reversed the Civil Division of the Washington County Superior Court’s (Civil Division) dismissal of the Human Rights Commission’s discrimination case against the Town of St. Johnsbury, returning it to the Civil Division for further proceedings.  

The Vermont Human Rights Commission (VHRC) is an independent state agency that enforces the state’s anti-discrimination/civil rights laws in matters of housing, state government employment, and public accommodations. In March 2023, the VHRC sued the Town of St. Johnsbury on behalf of Nicole Stone, a person with disabilities, alleging that it violated the Vermont Fair Housing and Public Accommodations Act (VFHPAA) when its Development Review Board (DRB) denied Stone’s request for a variance for a wheelchair-accessible, outdoor wooden structure next to the house where she lived. Specifically, the VHRC alleged that the Town violated 9 V.S.A. § 4503(a)(10) by refusing to grant “reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling unit.”  

In response, the Town filed a motion to dismiss, arguing that only the Environmental Division, not the Civil Division, could hear an appeal of the denial for a zoning permit, such as a variance. Although the Civil Division disagreed with the Town on this point – holding instead that it had the exclusive authority (i.e., jurisdiction) to hear VFHPAA allegations because the VHRC’s housing discrimination claim originated from the denial of a variance permit request – the Civil Division was time barred from hearing it. State law promotes finality in zoning by binding interested persons (i.e., those with standing to appeal) to decisions of local land use boards if the person fails to appeal within 30 days of the decision. “Upon the failure of any interested person to appeal ... to the Environmental Division ... all interested persons affected shall be bound by that decision ... and shall not thereafter contest, either directly or indirectly, the decision.” 24 V.S.A. § 4472(d). VHRC’s fair housing claim against St. Johnsbury, the Civil Division held, amounted to an indirect attack on its denial of Stone’s variance request, and therefore it was denied.  

The Vermont Supreme Court overruled the Civil Division on appeal, holding that, due to the remedial nature of the VFHPAA which the legislature intended to be liberally construed, the VHRC isn’t time barred by 24 V.S.A. § 4472 to bring fair housing enforcement actions. Interestingly, it did not overturn the decision of St. Johnsbury’s DRB, recognizing that granting at least some of the relief sought by VHRC did not necessarily require disturbing the DRB’s denial. “We stress that our decision on this question does not disturb our prior cases recognizing the finality of DRB decisions under 24 V.S.A. § 4472. We hold merely that § 4472 does not bar the Commission from seeking remedies for discrimination in the Civil Division that do not require reopening a final zoning permit decision.”   

What seems to be lost in reporting of this decision is that the Court did not find that the Town of St. Johnsbury had violated the VFHPAA in any way. All it decided was that the VHRC was not timed barred by 24 V.S.A. § 4472 from trying to prove that claim in the Civil Division of Superior Court, where the case now returns.   

The Vermont Human Rights Commission v. Town of St. Johnsbury case is archived at https://www.vermontjudiciary.org/sites/default/files/documents/op23-394.pdf  

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