Vermont Legislature SmartTranscripts:

[Amy Sheldon]: We are reconvening our morning meeting here with the Landis Review Board, we're going to hear from Brooke Dingle Dunn, Dean, on appeals.

[Brooke Dingledine]: Thank you so much. My name is Brooke Tingelin. I was a land use litigation attorney for thirty years with the Central Vermont Law Firm. And I had the benefit of, as a young lawyer, appearing before the environmental board, then the environmental court, the environmental division, which it evolved to. So I'm very familiar with the debate that's been raging for years about whether or not to return to more of a board model. So I was actually really pleased to be able to sort of spearhead the study, because it's just so important. The one thing that I want to start off by saying is my great respect for our environmental division judges. The concern about the amount of time that appeals takes is directly relevant to the amount of due process that we are providing to litigants. And going into this process, many people, I think, were expecting certainly a lawyer to have a bias in favor of court. And this has been a very interesting process to go through. We've spent the entire summer, from late April or early May through August engaging the stakeholders that the legislation dictated were the participants that were vital to the process. We also went beyond that and invited members of the public, folks that have been very active in this over the years, as well as attending many of our current board meetings to stay apprised of what the LERB is up to in our implementation of Act 181. It was a very robust process, and we went into it with the trying not to debate which is the right answer. What we tried to do is step back and say, we want to build best forward model possible to provide an alternative to the court process. We are not trying to duplicate the court process. We are offering a different alternative that is not a war between two parties. The way that I am looking at this, and I think the way that the board produced this review in terms of its thoughtfulness, is to provide an avenue for permitting that doesn't turn things into litigation war. The courts are very, very important in resolving disputes, but this is not necessarily somebody seeking redress for harm. It's just somebody asking to use their property in a certain way. I'm not afraid to say, I think generally that individual, the applicant has superior rights to be able to use their property as they deem appropriate under the law and the regulations that exist. We do allow others that could be impacted by that, who can demonstrate a harm could happen to them as a neighboring property owner. That process is one that through permitting, issues are hopefully addressed and controlled through the conditional process of instituting requirements for the applicant to be able to successfully redevelop their property with the right protections for our environment and all of the other criteria that pertain to whether or not our schools have the capacity to accommodate the influx in population from this project. So as you know, there are 10 criteria, really 32 sub criteria. And so this is a very complicated process. But instead of turning it into a lawsuit, which is basically what happens at court, what we are trying to do is to institute another permitting authority that reviews the work done below by the district commission, honors that effort and gives it due consideration, which means the board on appeal would not follow it. We're not deciding if they were right or wrong. We are deciding de novo, meaning with a clean slate. However, we are allowed to take into consideration what the district commission or the district coordinator, if it's a jurisdictional opinion, what their decision was, what information that they use to support it. And we can either adopt that information, the findings or the conclusions, or completely disregard or anything on the continuum training. The real important aspect of the difference between the model that we are proposing versus our current court system is the notion that, because we're not turning it into litigation, we are cutting out much of the pretrial busy work, call it, that often delays the process and can also be used for reasons that are not necessarily about the actual substance of it. Sometimes people do just want to delay or increase the costs of the permitting process. What we're trying to do is eliminate that part of it by basically eliminating discovery. And discovery is something when you enter into litigation, you're given the opportunity to find out what the other side is going to say. So when you show up at the trial, you're not surprised. And in the court system, we don't allow trial by ambush. That's sort of the term that we use. We wanna make sure when we get to court that time is not wasted in front of the judge cross examining people when you should already know what the answers to the questions are. But that's a different model. What we'd like to do is say, we're gonna require you to tell us the information ahead of time. Sort of like the Public Utility Commission does. When their hearing officer takes on an application case, that is a contested case because somebody has asked for standing and have raised issues that they want reviewed, which, just for your information, they use the Act 50 criteria plus a few other things. Those criteria, most of them, not all of them, were imported into the Public Utilities Commission review process for telecommunication towers and renewable energy projects by Bennington. So in terms of this discovery, what I was envisioning and we were trying to suggest is that everyone's gonna come together once a case is actually appealed, but the hearing officer will be issuing a scheduling order that says you're gonna tell everybody who your witnesses are by the state and any exhibits that you're putting into evidence need to be exchanged by this state. We are supplanting the discovery process by saying, tell us who your experts are, give us their reports so that everybody has that information exchanged, and then we can go to the hearing and nobody is wasting time or unaware of what the evidence is that's going to be presented. So we're trying to create a shortcut. And this is not unprecedented. We are following the Administrative Procedures Act, but that allows us more flexibility to, I'll put it this way, to reduce due process, not eliminate it, but to eliminate those aspects of it that cause the greatest delay and can be used for improper purposes. If you look at it like, we're like a super district commission, okay? And the other thing that I wanna point out is real important difference between the court making a decision and what happens in Act two fifty is it's not about you win, you lose. The umpire, the judge, actually has to be more involved in deciding whether these conditions are appropriate, what is appropriate. And that's a very different process and inquiry. And it's not to say that our environmental judges are incapable of that, do an excellent job. I have great respect for both of our judges. But the process is such that it is more formalized. And in terms of the message that I wanna provide to you, as a board member, my decision on this was very challenging. I came into it with a bias to the court. I will be the first to admit it, and I told everybody, Come again. It worked so hard, and all the lawyers know how to do it. But it was in my observations, and I'm the first to the confessional, it is the lawyers who were driving the timing of the litigation, which is not a bad thing, okay, for litigation, but it's a bad thing when somebody is sitting around and watching construction costs rise and whatever the economic conditions are that are making it worse and worse because of the time delay. Let me get

[Amy Sheldon]: We have a question for Senator Hardy.

[Ruth Hardy]: Oh, sure. Hi, thank you. I'm curious, a couple of things. I think the process by which you sort of shrink or consolidate or however you want to say the discovery process interesting. Happens or what would you I haven't read the report yet. Sorry. But the if I know that in the discovery process in the courts, if somebody doesn't disclose something, there are there are implications, there are penalties there. There's a, you know, things happen if things aren't disclosed. What in the process that you're proposing or the PUC process for that matter, you're modeling it after that what happens if somebody doesn't follow the rules of disclosure or discovery?

[Brooke Dingledine]: Yeah, it's a serious matter in court because discovery is under oath when you're answering interrogatories, which are breaking questions that have to be answered. And it's not a usual thing. In my mind trying to think back on thirty years of practice when I had seen that happen. When it does happen, if you are surprised at trial that something hasn't been disclosed, typically what the courts will do is delay things. Right. So what I Either let it we're not going to let it in, or I'm going to give the other side time. You can even do a deposition today, and then we'll come back tomorrow.

[Ruth Hardy]: Right. No, I understand what happens in the courts when it doesn't happen. So in your process, if something is not disclosed during the sort of shortened truncated discovery, or you're basically pre discovery? Well, I mean, I guess in the court process, you pre discover too. But what happens if somebody isn't just disclosing things through discovery?

[Brooke Dingledine]: An objection would need to be made, or there should be a response by the board that says this was not provided, bring in a witness to say, and that witness is not on the list or a summary of what the testimony is and they've got far afield with that. The answer is we're not going to accept that.

[Ruth Hardy]: I just think it has to be really clear what happens if people don't play by the rules. And then I was a little concerned by the way you phrased it. And I know you were sort of searching for how to phrase it, but that you were eliminating or reducing due process. And I I would hope that's not actually what we're doing or what you're proposing. It is it's more that you're streamlining the administration of due process or something like that. Because I think that that's where the tension is, is that we want to have a streamlined process. We want to have something that's fair. We don't want to hold up good projects, but we also want to preserve due process. And so how do we do that? And again, I haven't read your report. But if you're describing it as reducing due process, I think that's a little problematic. It's it. And I know you were struggling with the words, but I would love to have you think about that a little bit more and pick it apart and and just make sure that whatever you're proposing. Isn't eliminating or reducing, but is streamlining or making it more efficient or something, but still giving fair due process when it's necessary. Part of it is semantics, but it

[Brooke Dingledine]: Yes, no. And I do I totally appreciate what you're saying. I did not mean in any way I mean, we are preserving due process. And I'm sorry that I struggled in that. No, that's Okay. What I'm trying to explain is we're reducing the amount of time and that the information exchange is allowed to take place. We want information because remember, we're an appellate court. The entire case has already been presented below. That's fair point, yes. So when I was struggling with that, what I'm trying to explain is we are already getting an entire record from the law. Yep, okay. We are actually allowing more information beyond that. It is the logistical how we're getting it and timeframes that we are reducing. So I apologize for speaking, and in that way, I did not mean to imply that we are not preserving due process because absolutely we are. And that is the number one requirement of any appellate board is to ensure that those that have standing and have an interest that can be articulated, and then it's the hearing process through which those impacts are actually proven. So let me rephrase my testimony to say, no, we're not shutting anybody out. And there was also a great deal of back and forth about neighbors and there was a lot of objection because of some, I'll call them poster child cases. There were a couple that people have had grave concerns about. And of course, last year, there was a lot of discussion at the legislature about municipal standing and petition standing, for example, that some people are calling the mob rule and on the other side of the fence, it's like, how do you keep government from making bad decisions for the wrong reasons? So the whole prop, the most important thing in my mind about this entire study is trying to figure out how to deliver a good decision that is well thought out by a collective of five people that brings different perspectives to the table instead of relying on one judge, one decision maker about it, but that does so in a more expedient fashion. Now,

[Amy Sheldon]: before I Do you have a question?

[Unidentified Legislator]: So what's the appeal process? Yeah. There is an appeal process. So if somebody doesn't like your opinion, can they go to the environmental court?

[Brooke Dingledine]: No. From our board, would be like when the Public Utility Commission makes a decision, the appeal is directed to the Supreme Court. And we looked at other policies, like administrative law judges or hearing officers who recommended decisions to this board, the problem was that that was resulting in adding an additional step to the process. And so it would come to an appeal to the land use review board. The decision of the land use review board would be appealable to the Vermont Supreme Court. The findings of fact would have to be if we made a really big mistake. And that's the same standard that the Public Utilities Commission has on appeal to the Supreme Court. So there is that check and balance ultimately with the judiciary in the other branch of town.

[Unidentified Legislator]: I know some people that don't support that. Some of them are attorneys that have reached out to me. One

[Brooke Dingledine]: of the issues that we looked at during this study, because there wasn't much emphasis placed on it, but the ultimate appeal to the Supreme Court is a time consuming process as well. It is also very expensive to write a brief and put your case in at that level. Now that we have that check and balance, it is expensive to go with numbers. But as far as I know, no one was single or sitting in putting out any kind of judicial review from this process.

[Unidentified Legislator]: I'm just gonna make a comment that I think in some ways what you're doing is with the discovery is you're setting the confines of discovery in a way that's reasonable and rational. And that in some ways, would argue you're improving due process because you're removing to some extent the power imbalance that can come in some cases where when the system gets abused, that is the opposite of due process. And I think reining that in and getting control of it and setting the confines in a way that's fair to both parties is actually improving due process. Thank you. Let me

[Brooke Dingledine]: just follow-up on also just mentioning, The relaxation of the rules of evidence in our appellate proceeding also enhances due process and accessibility. We were also very cognizant of our environmental law obligations as a covered agency for that. And one of the most important factors in many, in, I think, the board's decision making on this was the notion of accessibility, not just for neighbors, this is about for the applicants, making the process better and faster for them. So let me just mention one thing in that regard. That is why we think that the Act 50 permitting is important for our board to take back control of, if you will, as

[Amy Sheldon]: opposed

[Brooke Dingledine]: to being a party at the court. The notion that we are making sure that people can get involved in the process if they choose because they have an important stake, facilitating and making that easier to be involved in. Think it was something that was very important to the decision making, about accessibility, not making it so hard that people just throw their hands up and then they just complain about it and don't actually participate in trying to fashion a result that will actually work for it.

[Amy Sheldon]: So I would love it if we could just get maybe through the recommendations and then continue with questions.

[Brooke Dingledine]: So let me switch to the previous one? No.

[Mike Tagliavia]: That's correct.

[Brooke Dingledine]: The very first recommendation is for the Act two fifty per day, for us to become the appellate board of those cases. Now, it's a very small universe of cases actually. 15 at most has been over the last few years. And then what happens to those 15 cases, two or three of them actually go here, it is such a small universe. Not to say that the cases that have become these poster children that did get appealed in two years went by before the permit was actually upheld by the Supreme Court. So I just want you to focus on the notion that what happens now is we become a party and we're a litigant, and most of the cases are getting resolved through settlement agreements, and the court has to review those and say it's okay, but it does not allow for the complete implementation and supervision in a way of this process by the board that really should be guiding I mean, don't supervise the district commissions in terms of telling them what to do. We don't tell them what decisions that they have to make or not. We are apolitical in that sense. We are here to implement the law and do that job. So in doing that, when all we can do is write a policy or give training to the district commissions, Ultimately, it's like, you let your children fly the nest, but this gives us the opportunity to fulfill the policy aspect of this program through the actual application and interpretation of the law to the actual facts in a case. And that's where the rubber hits the road. And this is the ability of a group of people with different perspectives and skills coming together to be able to provide a good decision. And one that is reflective of not just the words in the statute, but the intent of this legislature and how, what they are striving for in terms of this law being implemented. So it is a fairly small universe, but we also have suggested in order to keep the option open for applicants to be able to consolidate an appeal, if they have to go and get permitting from the town and zoning permit, as well as do an Act two fifty permit. We want them to be able to come to us on the appeal if there is one, so that everything can be done at once. You can have one hearing and then the board can write two decisions. We would write one for the zoning appeal and we would write one for the district commission appeal for Act two fifty. But you only need one time to listen to what the application is about. So that saves the second hearing. Whether that can be coordinated in terms of you know where the two processes are it happens infrequently because often that is not something that is logistically viable you know Often people want to do zoning first and get their okay there, that kind thing. This gives one more option to the applicants so that we're not eliminating that ability to consolidate. We went ahead and drafted board rules of appellate procedure. Those are primarily based on our old environmental board rules, and also our current environmental court rules, and what I did was try to utilize the aspects of both of them to keep it as similar as possible to the current situation. So if you're going to appeal to the lawyer, you do the same thing if you're going to appeal to the court. That's how we have kind of drafted the rules to have as little change and alteration as possible for the practitioners that are regularly doing this kind of work. The other recommendation that we made was to later, after we get the act two fifty appeals and the process and you know construct, me, constructed we would then consider taking municipal appeals. The ones that we had targeted would be the ones in the tier 1A area, any kind of municipal zoning appeal in those areas. And then in the one view areas, the housing projects, because that's where you have exemptions for housing projects of to a certain size. And so because of our familiarity with those areas, it seemed logical in terms of helping the housing crisis to be able to alleviate some of those cases from the environmental division at the LERP. We have three planners that are intimately involved in not misunderstanding these kinds of laws, but also writing them. And so we certainly have the expertise on the board to address these kinds of places our activity area. If that is helpful to the court and the legislature thinks that that would be useful for the housing issue that we are facing, We do believe we have the capacity. At this point, we've asked for that check-in to make sure that given the lack of information and data about what's going to happen when we exempt tier 1A areas, will that increase, decrease? We'll see more municipal permits, less obviously no Act two fifty permits. But it's very difficult right now to predict how all of this is going to play out and what ultimately will happen to the volume of the appeals. At this point, the only additional resources that we need to be decisions, the building of the database capacity so that we can push buttons to make sure that the documents are in the right place. We do not have the staffing presently. We really would need a clerk, a technical person that would be in charge of the computer assets organizing the data and the documents, and a docket clerk person, for lack of a better term. In terms of our leading staff, we were given a third lawyer for the implementation of Act 181. And the reason why we were asking for the time delay is that, as you've seen all of the other tasks that we're working on, and particularly the regional planning applications that are going to be coming in, we're going to be, as Janet mentioned, looking at six of those plants at once. So it's about the board capacity in terms of needing to push this off a little into the future, but that would enable us to actually build the system before flying that plane. And that would be really very important because at the same time that all this stuff is going on, there has been deferred maintenance for the rulemaking processes with the Natural Resources Board. As you know, it was just a chair, then there were volunteer parties. But this will give us an opportunity to update our procedural rules, which have already our legal staff has already been working on that with regard to the other quasi judicial functions that we are being given in terms of the regional planning approvals and tier one mapping and all of that. And so this would give us the opportunity to take all of the changes that we are already working on and be able to update those procedural rules at the same time. If in fact the legislature would like us to go forward to be the appellate board, That process could all be folded into one. You know, rule of making takes quite a bit of time for the LCAR process and all that. So if we could get all of that into our procedural rules this year, that would be wonderful in terms of making progress and being ready to push the button on whatever the date is if we were going to the Academy of Teleport.

[Amy Sheldon]: And I'm not sure, did you comment on number three about ANR appeals, or maybe I missed it.

[Brooke Dingledine]: No, no, I didn't. ANR was just not interested at all. They are very satisfied with the appellate process that they have. They have a small universe of those, but they come from so many, potentially they come from so many different programs within ANR that it was not palatable to ANR to be changing things for the appeals. And given the miniscule number of ANR appeals that are ever consolidated at the Environmental Division, literally like one or two, maybe in a year at most, it did not seem like it was a problem to uncouple the ability to consolidate NA or NARA deal with Act two fifty or even with municipal permitting. So, not only that, the board did not feel that we have the kind of technical expertise to be reviewing that. We think that that should stay with the court. The other very important aspect of the court's jurisdiction that we have said should stay with them, that is our recommendation, and that has to do with enforcement actions. If there's a violation of a permit or if people are developing land without a permit and they need an Act two fifty permit. We have an enforcement arm of our organization, and that goes to the environmental division through a variety of different mechanisms, it's an assurance of discontinuance or an administrative order. So that we also believe should stay with the court, that is an arena that we should be a party in, not a decision maker. When we are bringing forth a complaint that the law has been violated, we're the prosecutor, and we want to stay the prosecutor, not become the judge. So that's very important, that stay with the court. The other improvements, let me just very briefly mention, this process was really very useful even if the legislature decides not to change the appellate function of the lurb. We were able to, through lawyer Jim Dumont, identify a fix or a suggestion to the judiciary. Normally, a notice of appeal would be filed from an Act two fifty permit decision, and then people get involved, they have time to enter their appearance, and then a couple of weeks or a month later, the statement of issues on appeal was filed. And so there was this extra twenty eight day delay. And so the suggestion was why not require the appellant to file a statement of questions which defines what it is that you're appealing. I want the court to redesign this issue. So that there are different ministry of agencies that, for example, require the statement of questions to be filed with the appeal. And so it was a very simple suggestion. And the judiciary has already put that into play. They're already going through changing their rule or attempting to. So that's wonderful that that came out of here. At least that will cut down a month. And the other thing I would mention is that we are seeing some of the concerns and suggestions about allowing too much time and the parties to run the timelines of these cases. We have seen significant pushback that has been reported to us by the environmental court judges during this process that was incorporated by the stakeholders into their comments. And I do want the court to be aware of that. Right now, there's only 55 cases pending that are being worked on at the court. That's a small number. That is much better than it has been in the past. I don't have the stats, but we want to be very respectful to the judiciary, because just through this process in the summer, they are really endeavoring to address the concerns that people are voicing about time. Great.

[Amy Sheldon]: Thanks for all that. Representative Tagliavia, do you still have a question?

[Mike Tagliavia]: Yes. I like what I was hearing about streamlining and condensing the process, and then I heard the appeals going to the Supreme Court, I immediately thought expense and time. Of the one to 3% that were appealed, how many of those that didn't go further possibly didn't go there because of the expense and the time?

[Brooke Dingledine]: I think of that number, we can certainly try to figure that out just by looking at the few cases that, you know, would say most of them would have gone up on appeal would be my guess, but I will provide that information to you unless you Can

[Mike Tagliavia]: you give me an idea, average time once they go through the appeal process from beginning to end of the appeal? How long are we looking at? A year?

[Brooke Dingledine]: At the Supreme Court, Amy? Yes. In my experience of cases I've been involved with over thirty years, it can vary significantly. It can be a few months. It can be over a year. Over a year is not something that is, from my personal experience, that it's that unusual, or close to a year. There are a couple cases, two cases in our materials, and I can take a quick gander at that and chat with you later or provide you with more information if you want us to look back at those appeals.

[Mike Tagliavia]: Great, thank you.

[Amy Sheldon]: All right.

[Ruth Hardy]: Just want to clarify, because there's been some questions about what you're proposing right now, the way it works is if somebody has an Act two fifty decision on the local level, one of the district Right now, it's appealed to the environmental court. And then if there's an appeal after that, it goes to the Supreme Court. That's the current process, And what you're proposing is local districts still would have the first decision. And then if there's an appeal, it would go to you, to the LERB. And then if there's an appeal from you, it'd go to the Supreme Court. So the Supreme Court thing is not a change from what the current process is. It's just the changes in the middle that you're proposing is the middle thing. So just to be clear about that.

[Brooke Dingledine]: Yeah, thank you. I'm sorry if I didn't explain.

[Ruth Hardy]: No, you're doing great. I just wanted to make sure because there were two questions about it and that part isn't changing.

[Brooke Dingledine]: Yeah, it's the appellate level, intermediate appellate level. Ultimately in Vermont, you get to go to the Supreme Court.

[Mike Tagliavia]: Thank you.

[Amy Sheldon]: Representative Austin? I

[Sarah "Sarita" Austin]: just want to thank you for working to expedite this process in a fair way. But, know, our Vermonters have said it's unaffordable. People can't afford to live there. One of the reasons is we don't have housing. And one of the reasons that housing is so expensive, one reason, not the only reason is the appeal process. And it adds money cost to the contractor, it adds cost to the materials that keep going up after a year, and it becomes unaffordable to provide affordable housing. I think due to this, sometimes this process. So I just want to commend you for doing, for trying to find a way to expedite this process so people can get housing built in a fair, they've already gone through several of the processes. So I just want to tell you that I appreciate it.

[Brooke Dingledine]: Well, thank you so much. Let me just say, because I have spent my career representing all sides of these applications, I have represented municipalities, large and small, as well as neighbors. So my goal here and all of our board was very concerned about the job that we had in front of us, knowing that this has been a tug of war for many, many years. And I think that the goal is to figure out how to distill the best parts of what we have in our system and try to preserve those while reducing this cost burden. I spent thirty years trying to figure out how to represent people who didn't have money to be represented. And that's not talking about necessarily the neighbors. This is about making sure, as you're saying, that these costs don't escalate while we're sitting around twiddling our thumbs or so it seems about making decisions. We are committed to doing this very quickly. We have five people on this board. And so thank you very much for saying that. We really struggled and worked very hard to try to find something that was the right answer for the most people in this situation.

[Amy Sheldon]: So, yeah, go ahead.

[Mike Tagliavia]: If I could just add really briefly too, just to give some data context to this, we had in 2025, we had 13 appeals, and that's both the jurisdictional opinions as well as permitting decisions, as well as an enforcement, I think, matter. Had one of those appeals was related to housing.

[Amy Sheldon]: Yeah. It's a small universe that is affected, but it is, I think you used the term, they've become the poster child of this tension that can sometimes happen. I I just wanna say again, reiterate a deep thanks to all of you. It's been a journey that we're all on. I'm having flashbacks to 2017 with the commission on Act two fifty starting in Room 11, and many of the same folks are in the room here with us. So I just appreciate that we're in this really great transition to the professional board, and, many of us envision this happening. And so exciting to hear your progress, and I look forward to continuing to learn more about it and working with you to continue to implement positive changes to act two fifty for Vermonters. So thank you. And members, with that, we are gonna take a a quick break, but we're gonna transition to solid waste topic that's also of shared interest to both of our committees. We'll come back together at the top of the hour to talk automobile.