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Procedural Issues: Adoption, Amendment, Enforcement, and Appeals

Procedural Issues: Adoption, Amendment, Enforcement, and Appeals. Overview. Process is a critical component of land use planning and administration Failure to follow proper process can result in challenges to the legitimacy of land use decisions Discussion will focus on

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Procedural Issues: Adoption, Amendment, Enforcement, and Appeals

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  1. Procedural Issues: Adoption, Amendment, Enforcement, and Appeals

  2. Overview • Process is a critical component of land use planning and administration • Failure to follow proper process can result in challenges to the legitimacy of land use decisions • Discussion will focus on - adopting and amending municipal plans and bylaws - enforcement of those regulations - appeals that come as a result of land use decisions

  3. Adoption and Amendment of the Municipal Plan • State law strictly prescribes adoption and amendment process • Law requires planning commission to solicit public comment • PC must hold at least one public hearing on a proposed plan • After PC hearing, PC forwards plan to legislative body

  4. Adoption and Amendment of the Municipal Plan • PC must prepare written report on proposal addressing the proposal’s compliance with the state planning goals found in 24 V.S.A. § 4302 • Once PC has sent plan to legislative body, legislative body must hold at least one public hearing (more than one if more than 2,500 residents)

  5. Adoption and Amendment of the Municipal Plan • State law requires minimal hearings on adoption of plan • Most planners find that holding more hearings or informal meetings to involve the public and gain public buy-in is critical

  6. Adoption and Amendment of Bylaws (Regulations) • Planning commission drafts bylaws to implement the municipal plan • PC must prepare a report containing: - How the bylaw furthers the goals of the municipal plan - Its compatibility with proposed uses and densities - How it carries out specific proposals for planned community facilities

  7. Adoption and Amendment of Bylaws (Regulations) • Planning commission must hold at least one hearing to consider bylaw and solicit public comment • Many planning commissions find that multiple hearings engender greater public support • PC forwards proposed bylaw to legislative body

  8. Adoption and Amendment of Bylaws (Regulations) • Legislative body may make changes to the proposed bylaw • May only make “minor” changes in the 14 days preceding the first public hearing • Any time “substantial” changes are made, legislative body must hold another public hearing

  9. Adoption and Amendment of Bylaws (Regulations) • Legislative body adopts bylaw by majority vote • Bylaw takes effect 21 days after adoption • Voters may petition for Australian ballot vote to consider legislative body’s vote • Voters may petition for initial voting authority, or legislative body may give away by resolution

  10. Enforcement • Administrative officer (ZA) enforces land use bylaws • ZA must administer bylaws literally • Planning commission or appropriate municipal panel should not be involved in enforcement (unless it is an appeal)

  11. Initiating Enforcement Proceedings • ZA may seek enforcement informally • After issuing notice of violation and waiting seven days, ZA may take further action in Environmental Court or Judicial Bureau • ZA should always consult with legislative body and municipal attorney prior to taking further action

  12. Appealing Administrative Officer Decisions • Virtually any act can be appealed • Appeal goes to AMP – usually the development review board or zoning board of adjustment • AMP must determine if appellant is an “interested person” • Both appellant and ZA get to present their cases

  13. Appeals to Environmental Court • Appeals from AMP are taken by the Vermont Environmental Court • Appeal is de novo • Parties are entitled to present new evidence as if no case were heard below • Practically, judge will inquire as to what happened below to better understand the case

  14. Appeals to Environmental Court • No obligation for municipality to participate at this level, though some do • Some municipalities hire an attorney or designate an official to represent their interests in court • Mediation is frequently required

  15. Role of the Legislative Body in the Appeals Process • Legislative body has little role at local level • Though rare, some seek to participate as a party • Legislative body may make an appearance at Environmental Court • Legislative body may appeal if the plan or bylaw is at issue

  16. On the Record Review • Alternative to de novo review • Municipality must first adopt Municipal Administrative Procedure Act (MAPA) • Municipality must designate appeals to be heard on the record • Must audiotape proceedings • Chair must run an orderly meeting • Board must write strong, concise decision

  17. On the Record Review • Allows decision-making to stay local • If done well, can eliminate costly appeals • Municipalities considering MAPA should undertake training to learn the process

  18. Procedural Issues Summary • Following proper procedure is crucial • Land use decisions can be overturned for failure to follow procedure • Municipalities must be vigilant in understanding what state law requires and should consider education and training in procedural issues

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