To hasten housing permits, Vt. lawmakers consider moving appeals out of a courtroom

Thirty-two new homes will soon be built adjacent to a nature preserve in South Burlington — but only after a drawn-out legal battle launched by neighbors stalled the project for three years.

Shortly after the developers secured an Act 250 permit for the project next to the Wheeler Nature Park in 2022 — signaling its compliance with Vermont’s development review law — a group of neighbors appealed it. They contended that scenic views of the Green Mountains would be marred by the new homes, and wildlife would be disturbed by the rock blasting needed for construction.

An environmental court judge ruled in favor of the builders. In 2024, the neighbors appealed that decision up to the Vermont Supreme Court, which — after nearly nine months of back-and-forth between the parties — again gave the developer the go-ahead.

While a relatively small number of permits get challenged like this, just the specter of lengthy litigation can throw cold water on housing construction — a major problem given Vermont’s acute shortage of homes, housing advocates argue. Chris Roy, an attorney with the Burlington firm Downs Rachlin Martin, who represented the landowner JAM Golf, LLC in the South Burlington case, said the prospect of a prolonged tit-for-tat with opponents can steer builders away from taking on projects in the first place.

“If you have organized opposition that is willing to, you know, do it for the long haul, you’re looking at years,” Roy said. “People hear that and, I mean, all predictability is thrown out the window.”

Housing boosters in Vermont point to cases like this one as prime examples of how not-in-my-backyard style legal challenges can hold up badly-needed new housing, sometimes killing projects entirely or adding considerable expense. Lawmakers are now primed to revisit the thorny issue of reforming when and how opponents can appeal new development.

“The fact that our appeals system is so broken is perhaps the largest remaining regulatory barrier to having a housing system that will meet the state’s needs,” said Miro Weinberger, executive chair of Let’s Build Homes, a pro-housing advocacy group.

After largely punting on the issue two years in a row, lawmakers in 2026 will consider ways to speed up the appeals process. They’re looking to a recent report as a starting point for legislation, according to Sen. Alison Clarkson, D-Windsor, who chairs the Senate Committee on Economic Development, Housing and General Affairs.

The Land Use Review Board — the newly-refashioned body that administers Act 250 – authored the report. The board recommends taking Act 250 appeals out of the court system altogether and giving itself the authority to review challenges to projects.

The report argues that the move would help expedite and streamline the appeals process. The board would have more flexibility to limit discovery and back-and-forth between parties, and mandate stricter response timelines, said Land Use Review Board Chair Janet Hurley. It could also prioritize taking up housing-related permits “to address Vermont’s urgent housing needs,” the report says, and could take up challenges to local permits for projects that also see state-level Act 250 pushback.

“We could hopefully get a decision out quicker than the court,” Hurley said.

Kathy Beyer, senior vice president for real estate at Evernorth, the largest nonprofit affordable housing development organization in the state, recently navigated a years-long legal fight over an affordable housing project in Putney, Vt., brought on by two neighbors. While the courts ultimately sided with the homebuilders, legal fees and rising construction costs added tens of thousands of dollars to the project, according to the developers.

Beyer thinks pivoting appeals from court to the board is worthwhile.

“Given our experience with the length of time the appeals have taken to be resolved in the more judicial process … I think it’s worth giving it a try. I mean, we’ve been talking about this for years,” Beyer said.

Other housing proponents think appeals should remain in the court system, and the state’s efforts should go toward making that process more efficient by setting stricter deadlines and adding staff capacity to move cases along more swiftly.

Some argue that the new Land Use Review Board should focus its efforts on overseeing a major overhaul of Act 250 set in motion last year. And some skeptics think that a politically-appointed board could invite bias.

“You’re going to have the potential for … the tide going in and out as far as who’s on the board over time,” said Roy, the attorney.

Hurley, the board chair, said the board itself is “politically insulated” and noted that the report suggests holding back the transition from the court until 2028, once the board has wrapped up its Act 250 overhaul.

Rep. Marc Mihaly, D-Calais, the chair of the housing committee in the House and former dean of Vermont Law and Graduate School, said he has yet to make up his mind on whether appeals should remain in the courts or shift to the board.

“The one thing that really is clear to me is that, from the point of view of housing, we want a much faster process,” he said. “It’s not a question of nibbling around the edge. It’s really a question of — can we change the system to make it much shorter.”

This story, by Report for America corps member Carly Berlin, was produced through a partnership between VtDigger and Vermont Public. This story was republished with permission from VtDigger, which offers its reporting at no cost to local news organizations through its Community News Sharing Project. To learn more, visit vtdigger.org/community-news-sharing-project.