In 2024, the Vermont Legislature enacted Act 181, a sweeping reform aimed at reshaping how the state coordinates land-use planning across state, regional, and municipal levels. As part of this overhaul, the Act directed the Land Use Review Board to examine Vermont’s land-use appeals system, drawing on a broad set of stakeholders to guide its recommendations. Central to that inquiry was a simple but consequential question: Would shifting appeals of Act 250 from the Environmental Division to the Board actually make the process more efficient and workable—or merely create new and different problems?
After issuing draft study reports, the Board sought public comment. The following is the comment submitted by Paul Frank + Collins Attorneys Alex Arroyo and Mark Hall. It highlights the enduring strengths—both structural and cultural—of the current system and warns of the new challenges likely to arise if appeals were redirected to the Land Use Review Board.
See the Land Use Review Board’s Final Appeals Study Report and other information here: https://act250.vermont.gov/appeals-report
Public Comment on the Act 250 Appeals Study Report
The Act 250 Appeals Study, conducted pursuant to Act 181, represents an important effort to improve the efficiency, consistency, and predictability of Vermont’s land use permitting and appeals system. These are worthy goals, and continued reflection on how best to administer Act 250 is essential. However, the proposal to transfer appellate jurisdiction from the Environmental Division of the Superior Court to the Land Use Review Board would be a serious misstep. Such a change would not solve the current challenges within the system; rather, it would create new and more fundamental problems. Take note that no complaint is made regarding the quality of the Environmental Division’s decision-making or its impartiality, so a move away from the Court to something unknown as a way to remedy the primary complaint that it moves too slowly is drastic and unnecessary. The court procedures can be easily fixed and streamlined. Other tools, such as adopting the use of magistrates and masters could easily speed up the process. Simply tearing up the process and starting over is not justified qualitatively or financially.
The Environmental Division should retain jurisdiction over Act 250 and municipal zoning appeals to preserve the integrity, independence, and public trust that are central to Vermont’s land use framework.
Judicial Independence and Public Confidence
One of the greatest strengths of the current appeals system is its placement within the judiciary. The Environmental Division operates with a level of independence that insulates it from political and administrative pressures. This judicial structure provides predictability and fairness, both of which are grounded in decades of case law and legal reasoning developed by judges with deep expertise in the law, in Act 250, and in a wide array of related land use matters. The Division’s connection to the broader Vermont judiciary ensures that its decisions align with other legal principles and frameworks, promoting coherence across the law.
Judges that serve on the Environmental Division are experts in procedure and experts in land use and municipal zoning issues. Judge Walsh has over thirty years of experience in these fields; Judge McLean has a similar wealth of knowledge and experience; and the legacy of Judge Durkin continues to support the particular expertise of the court. Superior court judges are selected as a result of a rigorous nomination and selection process. As judicial officers, the judges of the Environmental Division are held to the highest standard of conduct and are subject to discipline for misconduct. Judges in the Vermont judiciary are also obligated to go through a retention process whereby they are fundamentally accountable for their conduct and their treatment of cases, litigants, and the public.
Transferring this work to the LURB would jeopardize these benefits. The Appeals Study Report itself acknowledges that such a shift would likely result in a loss of institutional knowledge and legal expertise. It would also erode public confidence in the impartiality of decisions that have historically been rendered by judges bound by judicial ethics and precedent. The Environmental Division’s role within the judiciary is not incidental; it is the foundation of the public’s trust in the fairness of the process.
Infrastructure, Expertise, and Legal Recourse
The Environmental Division already has the necessary infrastructure, staff, and procedural systems to manage appeals efficiently. It has the capacity to handle both factual and legal disputes in a manner that balances thoroughness with efficiency. Crucially, its decisions are subject to appeal to the Vermont Supreme Court, providing an established and transparent avenue for further review.
By contrast, the LURB has not demonstrated that it could provide the same level of appellate oversight or procedural safeguards. The Board’s own report concedes that it is “unclear whether a Land Use Review Board would offer the same level of appellate oversight,” leaving open significant questions about how affected parties could seek recourse. Courts exist precisely to handle complex disputes—applying established evidentiary rules and legal standards to ensure fairness. Moving appeals away from that structure would sacrifice both rigor and reliability.
The Proper Role of the Board
The Board has a vital role to play in improving the Act 250 system, but that role should center on guidance and rulemaking, not adjudication. The Study Report suggests that concentrating appeals within the Board would provide clearer guidance to district commissions and applicants. Yet it offers no convincing explanation for how this would occur, particularly given the loss of legal expertise that such a transfer would entail. Moreover, housing appeals within the same body that is tasked with overseeing the Act’s goals and process would produce predictable and ongoing conflicts of interest. The Board simply cannot advise Commissioners, Coordinators or the general public regarding specific matters or projects that may later come before it on appeal.
A more constructive approach would be to retain appeals in the Environmental Division—where legal and factual disputes can be fully and fairly resolved—and empower the LURB to focus on enhancing the clarity and usability of the Act 250 process. The Board could develop improved guidance documents, best practices, and rules to help commissions and applicants navigate the permitting system more effectively. This collaborative model would combine judicial integrity with administrative support, improving outcomes without destabilizing the system.
Strengthening the Existing System
There are many practical ways to improve efficiency and consistency within the current structure. Procedural rules, such as Rule 5, could be updated to reduce delays and ensure that parties are better prepared for litigation. Rules related to the discovery process could similarly be amended for the specific context of Act 250 appeals, where investigation into prior events holds little bearing on to-be-completed projects. Expanded training for district commissioners would promote greater uniformity and accuracy in decision-making at the initial review stage, potentially reducing the number of appeals altogether.
The Board’s rulemaking authority could also be used more proactively to refine Act 250 administration. By engaging in public notice-and-comment rulemaking, the Board could modernize both the Act 250 Rules and its own procedural rules in ways that meaningfully involve the public and stakeholders. These are changes that strengthen the existing framework rather than dismantle it.
Support for Maintaining Judicial Review
It is notable that many of the agencies and organizations most experienced with Act 250 do not support transferring appellate jurisdiction. The Agency of Natural Resources, for example, has emphasized that the Environmental Division’s established expertise and procedural consistency serve all parties well—developers, municipalities, environmental groups, and the public alike. The current system is not perfect, but it is known, predictable, and grounded in law. Those qualities are essential for maintaining public trust and ensuring fair outcomes.
Before the Environmental Division became responsible for adjudicating Act 250 and municipal zoning appeals, that task was assigned to the then Environmental Board. Many of the concerns in the comments on this current choice echo the many issues that were inherent in the system that existed then: problems that will reemerge if appellate jurisdiction is taken from the Environmental Division and transferred to the Land Use Review Board. Simply changing the name of the Board will not alleviate the problems that years ago led to the decision to move appellate jurisdiction to the Environmental Division.
Importantly, despite concerns for the efficiency and approachability of the current Act 250 appellate process, no one is claiming that the Environmental Division is failing in its duty to offer a fair and open forum for the adjudication of land disputes. No one is complaining that the Court’s decisions are faulty or misguided. Some may not get the results they were once accustomed to, but there is no outcry that the Court’s decisions are poorly made. Instead, its decisions are well-founded, consistent, and unbiased. Given that the quality of the work is unquestioned, it makes little sense to remove substantive matters from the court when some mild tweaking of the rules would drastically reduce the backlog. The problems currently complained of should be addressed by refining the existing appellate procedure, that is both working and understood, rather than discarding it in favor of an unformed and inchoate process.
Conclusion
For more than fifty years, Act 250 has served as a cornerstone of Vermont’s commitment to thoughtful and responsible land use. While the pressures of housing demand and economic growth are real and pressing, the solution is not to discard the independent and tested system that underpins the Act. Transferring appeals from the Environmental Division to the LURB would erode institutional knowledge, weaken public confidence, and create new uncertainties with no clear benefit.
Respectfully, if the goal is a process that is more efficient, effective, consistent, and fair, appellate jurisdiction must remain with the Vermont Superior Court Environmental Division, and the Board should focus on supporting that system through guidance, training, and rulemaking.