Zoning Innovations in Vermont|

Martin Harris

Martin Harris lives in Brandon, VT. He is an architect, and a property rights and education advocate.

I suppose it’s a fact-of-life in the modern Vermont that the longer you avoid assuming room temperature (a little borrowed Rush Limbaugh phraseology there) the more legal phrases you will be forced to learn. That was the case recently when I was trying to understand how a zoning board can deny a permit for a project specifically designed to meet (and in fact to exceed) all the published regulatory requirements for construction in that particular zone. The previously unknown phrase is “as of right” and it refers to the obligation of a zoning board to issue a permit when all the duly adopted regulatory requirements have been met. You can see the phrase and its definition in, for example, the New York City zoning ordinance. It wasn’t in the curriculum in the academic world of planning and zoning when I was pursuing a degree in the subject many decades ago, nor is any reference to “as of right” to be found in the P&Z shelves at the libraries of Middlebury College or Vermont Law School today. I know. I searched. What are on those shelves are the same sorts of standard texts, with newer additions, of course, as those we dutifully read through back then.

How recently “as of right” entered the language of P&Z activities I don’t know, but I suspect that the phrase came into widespread use (there’s quite a lot of Google hits to be found, for example) because of something else which has come into widespread use: acceptance of the idea that neighbor opposition, alone, can require a zoning board to deny a permit. Exactly that happened recently in Randolph, where a nine-unit multi-family project with which (a little full disclosure here) I’m involved was rejected. The reason for neighborly opposition is obvious: although the area has been zoned for multi-family and commercial development for more than twenty years, it’s still a single-family housing neighborhood, and, as one hostile neighbor said, “we like it that way.” When I was active in P&Z work, that sort of neighborly opposition didn’t trump full regulatory compliance in the zoning board’s review of a permit application; now, ever more frequently in Vermont, it does.

Consider, for example, the concurrent Manchester situation, where a hotelier seeking to build--guess what--a hotel on land zoned for--guess what--hotels, has been warned by the opposition, consisting in substantial numbers of--guess what--established local hoteliers, that his proposed project “wouldn’t fit” and they will oppose it. Note the choice of verb.

If there is a sound legal basis for this sort of permit denial (and the long list of as-of-right citations in such zoning ordinances as NYC’s suggests there isn’t) I’ve yet to find it. I asked Commissioner John Hall of the Dept. of Housing and Community Affairs (H & CA) for the manual-of-procedure for zoning boards in Vermont; he said one doesn’t exist. I asked him for his opinion on the question. He hasn’t answered.

The closest I’ve seen to a legal argument comes from Randolph resident (and nearby property owner, Assistant Attorney General Julie Brill) who advised the Randolph zoners as follows: “the zoning reg’s are really irrelevant to whether or not this [project] objectively fits within the neighborhood.” Again, note the verb choice. Her advice seems to say to the zoning board that neighborly objection does, and should, trump regulatory compliance and thereby serve as grounds for permit denial.

Here, then, is my question: why bother with P&Z at all, and why go to the effort of drawing up elaborate town plans and zoning regulations? Instead, let’s just convene the local mob of neighbors each time a project is proposed and hold a yea-or-nay vote, loudest side wins. The answer is, of course, that mob rule can’t be openly espoused--so ungentrified, don’t you know. So Randolph keeps its veneer of civilized behavior and denies the permit on the grounds that the new building might shade neighbors’ gardens and the new dumpster might smell. And, in fact, most modern Randolphites, like most modern Vermonters, like being able to torpedo projects in such manner. And they all vote. The raw politics explain why Vermont has no manual-of-procedure for zoners, why one, when and if it’s ever published, won’t address the as-of-right question, and H & CA chooses to remain discreetly silent on the subject.     *

“It is better by noble boldness to run the risk of being subject to half the evils we anticipate than to remain in cowardly listlessness for fear of what might happen.” --Herodotus