Opinion: Kathy Beyer: The permit appeal process in Vermont needs to change

by Kathy Beyer | Oct 3, 2024

Unfortunately, Act 181 did nothing about the length of the appeal process in Vermont.

We just want to build 25 new homes in Putney Village.

And while we have not met the 25 families who will be opening the door to their new homes when we do build, we know from decades of experience that they will be opening that door with a sense of joy and relief. Finally, they will be able to say “we are home.”

Our parcel is located at 12-14 Alice Holway Drive. The new residents will be able to walk to the Putney Food Coop, across the street to the regional bus stop, and down the street to the library and post office. Windham & Windsor Housing Trust worked for years with the Putney Community Gardens and Putney Farmers’ Market. As a result of this work, we have subdivided the 3.94-acre parcel and are selling the northern portion to the community group, so that the long-term future of the gardens and farmers market is secure.

WWHT and Evernorth submitted our local permit application in December of 2021. After nine public meetings, two zoning meetings, and hours of deliberation, the Development Review Board unanimously approved the application in March 2022. Despite this, we have been stuck in permit appeals for the last two and a half years. So we have not been able to build these 25 new homes.

The local permit was appealed by one neighbor in March 2022. Eleven months later, the Enviromental Court rendered its decision, confirming that the project’s zoning permit was issued in compliance with Putney’s zoning ordinance. The neighbor appealed to the Vermont Supreme Court in March 2023 and for that appeal, the Court used a “rocket docket” framework, whereby three justices considered the case and rendered their decision in July 2023. The decision affirmed the ruling of the lower court.

The town of Putney did the hard work of planning and zoning for where they want to see housing built. The Planning Commission completed a report titled “Visualizing Density in Putney Village” in 2005 which recommended this site for housing development. The town created a neighborhood development area, which meant our affordable housing project qualified for an exemption from Act 250 called a priority housing project. And this set the stage for the second appeal.

While our project clearly benefits from the PHP exemption, it is standard practice for developers to request a jurisdictional opinion. The JO is needed to provide legal confirmation to a project’s funders that the project is exempt from Act 250.

We received that jurisdictional opinion in September 2023, but a JO can be appealed. And two weeks later, such an appeal was filed, returning us to the Environmental Court. The Court again ruled in our favor in February 2024.

If this is starting to sound like a bad movie, it gets worse. That decision was appealed to the Vermont Supreme Court, in March 2024. The oral argument date is now scheduled for October 22, 2024.

While we have been in this waiting period, Act 181 was signed into law. This monumental change to Act 250, creating a place-based jurisdiction approach, means that our project at Holway Drive is even more clearly exempt from Act 250. Act 181 affirmed that this is exactly the type of location where we should build more housing: in designated planning areas, connected to town water and sewer systems, along bus routes and near public resources. However, in order to finance our project, we must resolve this appeal.

Unfortunately, Act 181 did nothing about the length of the appeal process in Vermont. While we respect the right of neighbors to appeal a project, we do not respect the current appeal process in Vermont, which can allow one person to delay broadly supported and critically needed projects by years as they navigate an expensive process through a backlogged legal system. It must change.

Back to the 25 homes. The appeal process has delayed the start of construction by at least two years. Construction prices have increased by over 30% in that time frame, which means we will spend significantly more to build these new homes in Putney than initially anticipated. These are public housing funds that could have been used to build more homes in other communities across the state.

Vermont needs 30,000 new homes by 2030. Every community in Vermont needs to embrace these new homes, joining hands to plan for where they will be built. But we cannot afford to let progress on our housing crisis get stuck in the permit appeals process.

Nor can the 25 families who just want to open the door to their new apartment and say “we are home.”

Kathy is the senior vice president of real estate development for Evernorth, a nonprofit organization that provides affordable housing and community investments in Vermont, New Hampshire and Maine. She lives in Hinesburg. 

The original opinion piece ran in the “VT Digger” on 10/3/24 and can be found here: https://vtdigger.org/2024/10/03/kathy-beyer-the-permit-appeal-process-in-vermont-needs-to-change/