The Myth of Local Control (Valley News Op-Ed)

To the Editor:

As your readers may recall, sixteen months ago the Norwich Development Review Board denied Simpson Development Corporation's application to construct a five-unit townhouse complex on Main Street. Simpson appealed to the Vermont Environmental Court and this past week, Judge Thomas Durkin vacated the Norwich DRB decision, granting Simpson Development intermediate subdivision approval. As former Chair of the Norwich DRB, I am disappointed with Judge Durkin's decision, not because there was anything inherently disastrous with the Simpson Development plan, but rather for what Judge Durkin's decision says about the role of local planning and permitting boards, belying the myth of local citizen authority to shape future development in our communities.

The facts underlying the appeal are pretty straightforward. Simpson Development is entitled to a two-unit dwelling on the site in question under Norwich zoning regulations. However, they applied for a five-unit townhouse planned residential development which requires review under Norwich's recently updated subdivision regulations. After several public hearings, the Norwich DRB, in a unanimous thirteen-page decision, determined that the proposed five-unit townhouse ran afoul of certain aspects of our subdivision regulations and denied the application for the larger, five-unit, development. Simpson Development disagreed and appealed our decision to the Vermont Environmental Court.

Generally, a right to appeal an earlier decision is offered to provide an aggrieved party some recourse from errors or arbitrary decisions by lower courts or boards. Under Vermont law, appeals from local permitting boards are reviewed de novo, meaning the judge hears the appeal as though he or she were the local permitting board and without regard to the local board's earlier decision. Judge Durkin's decision clearly illustrates how de novo appeal from local permitting board decisions frustrates local community control over land use development and mocks the democratic process required to exercise that control.

Since the late 1960's, Vermont has pursued an admirable experiment in land use governance which delegates authority over land development to local communities emphasizing citizen participation in both planning and permitting. The values animating this effort are simple and uniquely American: The authority to govern reposes with the people. The authority to govern local land use development is best exercised by the local people. Because land use implicates the individual rights of individual citizens to use their land as they see fit, both planning and permitting decisions need to be open to public scrutiny and legal safeguards must be created to avoid arbitrary decisions. This tension between individual rights and community governance is best sorted out by requiring communities to adopt, and periodically revisit, local planning and permitting regulations through a series of mandated public hearings. There are no guarantees that the local people will always make the right decision, but there is some assurance the decisions will be made by the people who will have to live with the results.

As required by Vermont law, Norwich began a comprehensive revision of our town plan in the early 1990's. The town plan sets out broad development and land use governance goals for the town and was drafted through a long series of public meetings and subcommittee work. These revisions were adopted by the town in 1996. For the next five years, our Planning Commission revised our subdivision regulations to implement some of the specific development goals articulated in the town plan. Another series of public meetings ensued and the planning commission's draft was finally adopted by our Selectboard in 2002. On a parallel track, our Conservation Commission drafted an "Inventory of Scenic Resources" intended to guide future permitting decisions to preserve specific scenic areas within our community. The Planning Commission and Selectboard adopted this "Scenic Inventory" whole cloth into our current subdivision regulations, mandating that our Development Review Board ("DRB") review applications to avoid adverse impacts to those resources.

The rubber hits the road in the permitting process. Here, in a series of public hearings, the Norwich DRB reviewed Simpson Development's five-unit townhouse proposal according to the regulations drafted and adopted by our townspeople. Under the subdivision regulations, the proposed site for these townhouses is identified as a scenic resource, framing the "gateway to the village" for those entering Norwich from the Route 5/Interstate 91 intersections. Furthermore, our subdivision regulations explicitly require that subdivisions be designed to "reflect the desired settlement pattern" of the surrounding zoning district -- in this instance the Village Residential District and the gateway transition to that district. The Norwich DRB determined that the size and prominence of the proposed development would adversely impact the "gateway to the village" as described in the "Scenic Inventory." The DRB further determined that the prominence and placement of the proposed development would disrupt the "desired settlement pattern" of this "gateway" as described in the subdivision regulations and "Scenic Inventory."

It should be obvious to anyone -- as it was to the entire DRB membership at the time our decision was issued -- that questions of "adverse impact" to scenic resources and "desired settlement patterns" are highly subjective determinations. On appeal -- and de novo review -- Judge Durkin faced precisely the same subjective determinations and saw them differently. It is not Judge Durkin's fault, but a function of Vermont law, that he reviewed the appeal and made his findings without any knowledge of, or reference to, the DRB's detailed written decision. In this vacuum, he found that the size and prominence of the proposed development would indeed impact the scenic gateway to town, but felt that impact wouldn't be "adverse." On the contrary, he found that the proposed structure "will more clearly announce that a traveler is now entering the Village." Regarding the desired settlement pattern of the "gateway," Judge Durkin felt there was no disruption.

Judge Durkin's decision begs a question which goes to the heart of Vermont's land use planning and permitting regime: Why on earth are local permitting decisions reviewed de novo? Where, as here, highly subjective determinations are required to ascertain consistency with settlement patterns and the scale of impact upon scenic resources, shouldn't those determinations be made by local land owners who live in the town and will have to live with the results? Why are the subjective determinations of a unanimous seven-member local citizen board simply cast aside in favor of the subjective determinations of a single Vermont judge? What qualifies Judge Durkin to assess the quality of a "scenic resource" which Norwich townspeople democratically chose, identified, articulated, reviewed, and adopted as local land use law. One may question the aesthetic value of our "scenic gateway," but you can't question the fact we, as a town, chose it and adopted specific regulations meant to protect it. As has been said before, the people have the right to be wrong. Here, oddly, Vermont judges do too.

It is an anachronism of Vermont law that this local control is subverted entirely by de novo review upon appeal. There must be a right of appeal from local permitting decisions to protect individual land owners from arbitrary decisions, unfair proceedings, and legal errors, but the standard of review for those appeals should give deference to the factual findings of the local permitting board. Here, Simpson Development's appeal made no claim that their rights had been violated, their application unfairly treated, or that the DRB had exceeded its authority. Rather, they simply wanted a second chance at getting their project approved, this time by a judge instead of a citizen board. The law allows this type of appeal and, had I been their lawyer, I would have raised the idea with them myself. However, there is a real cost in terms of lawyers fees, court resources, and wasted effort by citizen volunteers which shouldn't be ignored.

There is much more at stake here than a mere legal point or a bunch of townhouses on Main Street, Norwich. Here, we have a clear example of local citizen authority to shape local development in our communities giving way to lawyers and well-funded, determined applicants. It is a mockery of the countless hundreds of hours spent by volunteers in a conscientious effort to shape the future of our towns that those efforts can so easily be cast aside and the ultimate decisions left to a bunch of lawyers in a courtroom somewhere else. The noble experiment of democratic, volunteer-based self-government still survives in the habits and expectations of small Vermont towns and the people who live here, but it's under assault daily by the litigiousness and regulatory complexity of our broader society. The fate of this experiment rests with us and our unwillingness to simply acquiesce. Please call your representative and state senators to discuss this issue; volunteer with your local planning and permitting boards; and say hello to Simpson Development's latest project, the new gateway to Norwich.