MAC

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  

In a closely watched case, the Chittenden County Superior Court rejected a challenge to the City of Burlington’s (the City) regulations for the operation of short-term rentals in its Minimum Housing Standards ordinance, adopted in 2022. Specifically, the regulations define short-term rentals in accordance with state statute (as “units rented for fewer than 30 consecutive days and for more than 14 days in a 12-month period”). 24 V.S.A. § 2291(29). The ordinance also establishes an owner-occupancy requirement except in limited cases. This means that the short-term rental unit must be located within the host’s primary dwelling, in a dwelling unit on the same lot, or in the same building as the host’s primary residence. Hosts must register their rentals and pay a 9% tax, and violators can be fined. 

This case was brought by 14 distinct entities or individuals that own and rent out properties on a short-term basis in the City (the Plaintiffs). The Plaintiffs claimed that the City lacked authority to impose durational limits and owner occupancy requirements for short-term rentals. The Court, however, was quick to note that 24 V.S.A. § 2291(29) “clearly authorizes the City to impose durational limits and owner occupancy requirements on short-term rentals.” 

Moreover, the Plaintiffs claimed that, even if the City holds authority to regulate short-term rentals in this manner, the durational and occupancy requirements fail to “promot[e] the public health, safety, [or] convenience [of] a town, city or incorporated village” as required by the law. Again, though, the Court disposed of the question quickly, noting that the promotion of the public health, safety, and convenience of a municipality is “broad and inclusive.” The Court further explained that the “relationship between a lack of available long-term housing and strains on the housing market, with impacts on homelessness, is intuitive, as is the consequent impact on a municipality’s general welfare.” 

This is a good case for municipalities as it makes clear that the protection of the long-term housing market promotes the public health, safety, and convenience of a municipality. It sets the foundation for municipalities to regulate short-term rentals with statutory durational limits and an owner-occupancy restriction, the latter of which has been challenged in federal courts with varying results. It’s important to keep in mind that this ruling is only binding within Chittenden County for now, but it does provide persuasive authority for other counties if a challenge were to be filed there. 

It is still unclear if this case will be appealed to the Vermont Supreme Court which could have significant impacts on municipalities depending on the outcome. We will watch closely and provide updates should it be appealed.    

The 32 Intervale, LLC et al v. City of Burlington case is archived at https://www.vermontjudiciary.org/sites/default/files/documents/32%20intervale%20v%20city%20of%20burlington%20hoar%2023-cv-2886%2011-19-24.pdf. 

This article, the second in a series, highlights data from the 2024 Vermont Municipal Compensation and Benefits Report and summarizes it in charts. We hope this month’s focus – on how municipal offices in the 187 responding local governments are filled – will be of value to members interested in the breakdown of elected and appointed offices throughout the state.  

Vermont law allows certain elected municipal offices to be changed to appointed or eliminated following the statutory process. This can be accomplished by the governing board putting an article forward to the voters, by voter-backed petition, or, in municipalities with charters, through a charter change. (See the bullet list of links near the end of this article for many helpful resources.) 

Statutory Positions: Elected or Appointed? 

As of 2024, although a significant percentage of municipalities that responded to the survey have voted to change the offices of clerk and treasurer to appointed positions (17% and 30%, respectively), most still elect these positions.  

Office Eliminations and Limits to Authority 

For certain positions such as auditor and lister, municipalities have the statutorily authorized option of eliminating the elected position altogether and appointing or contracting with a professional instead. Such is the case with locally elected auditors being replaced by certified public accountants and with listers being replaced by assessors. 

The only statutory offices a municipality can currently eliminate are auditor, lister, and constable. The chart below shows that several municipalities have already exercised this option for one or more offices. As of 2024, 23% of responding municipalities have opted to eliminate the position of auditor in favor of hiring or contracting with certified professional accountants, 18% said they had eliminated their board of listers in favor of hiring or contracting with professional assessors, and 13% had eliminated the position of constable. We also asked whether the municipality limited the constable’s authority, and 8% reported they did.