As towns update their plans this year, some all-volunteer planning commissions have asked this question: “Will this stand up in court?”
Town plans are intended to be visionary documents that contain a town’s long-range goals and form a platform from which policies, such as zoning, spring.
But ever since the Vermont Supreme Court overturned an Environmental Court ruling for South Burlington in 2008 because of the city’s zoning policy, there is now pressure for these previously visionary documents to also pass legal muster.
“I think a lot of towns are in the same boat,” said Wilmington Zoning Administrator Alice Herrick about towns that have a lot of generalized language in their zoning and plans.
In 2008, JAM Golf, LLC, appealed an environmental court’s decision to deny the developer a permit for a planned residential development.
The environmental court ruled that the project did not meet the South Burlington Zoning Ordinance requirements of protecting wildlife and scenic views and did not agree with the city plan.
Upon appeal, the state Supreme Court ruled the project couldn’t be denied a permit when the zoning ordinance lacked directive language so that it violated the developer’s due process rights.
According to Windham Regional Commission Senior Planner John Bennett, the VSC ruled in JAM Golf’s favor because it had an issue with South Burlington’s zoning ordinance, not the town plan.
But because a town’s legal zoning bylaws flow from a town plan, he said, the ruling on the ordinance has had a domino effect, requiring vague language to be replaced with specificity.
What’s in a plan?
“Every town is different. It’s not a right or a wrong thing,” said WRC Executive Director Chris Campany about writing a town plan.
At its core, a town plan answers two questions for a community: “Who do we want to be?” and “How are we going to get there?”
A plan answers the first question through goals. The second question is answered through policies and recommendations in the plan.
Traditionally, the language of plans used words like “encourage,” “promote” or “may.”
The JAM decision set in motion a revision towards the words “shall,” “will” and “must.”
According to the Vermont Municipal and Regional Planning and Development Act, Vermont does not require municipalities to have town plans.
Having a plan in place, however, opens doors to state and federal funding, downtown designations and community development block grants.
Windham Regional Commission Associate Director Susan McMahon said towns couldn’t develop zoning without a town plan because the plan acts as the guide for what the municipality wants to look like and how its citizens want to use its land.
Environmental courts also look to plans to guide Act 250 decisions.
“Without restrictions, it’s assumed all things are allowed,” said Campany.
Campany added that town plans have the potential to effectively guide capital budgets but rarely get tied into that part of the financial process.
“[A town plan is] not just about the politics of control,” said Campany.
“It’s about visioning for the future,” added McMahon.
The state requires town plans receive an update every five years if a municipality has chosen to have one.
McMahon said the strengthening of language puts volunteers in the uncomfortable position of trying to think like lawyers.
Campany said just because someone is on board with the process doesn’t mean he or she understands the intricacies of the process.
“It’s not necessarily intuitive stuff,” he said.
At the town level, the JAM decision has been a blessing and a challenge.
“[JAM was] a wake-up call to all of us to be more specific, rather than [write] generalized feel-good statements,” Wilmington Zoning Administrator Alice Herrick said.
She feels the directive to be more specific has made Wilmington’s plan a better product, but has also created more work.
According to Herrick, Wilmington’s town plan and zoning are both in the middle of rewrites. The town knew the zoning needed work before the town plan revisions began, needs that made the process two-pronged.
She said she admires the planning commission volunteers who have put in more hours than expected updating the town plan and a “huge rewrite” on zoning.
The JAM Golf ruling can help provide guidance for Wilmington, whose selectboard ran updates past the WRC Town Attorney Robert Fisher of Fisher & Fisher said Herrick. But, she adds, “it’s only one court case” and future cases will refine what the court is saying with JAM Golf.
Elizabeth Catlin, head Dummerston’s planning commission and a lawyer, attended a panel two years ago in Putney where attorneys involved in the original JAM Golf decision discussed the case.
“The landscape remains unsettled after JAM Golf,” she said.
A decision like JAM Golf means inserting directive language into a plan that’s meant to be a vision for the future. Ordinances like zoning that come out of the plan “are meant to be certain,” she said.
Catlin feels writing a town plan is easier when the language is not very specific but that JAM Golf encouraged towns to be specific and detailed so courts don’t need to read into the meaning of “encourage” or “promote.”
In light of the JAM Golf decision, the Dummerston Planning Commission attempted to bring more specificity into the town’s plan, especially in the land-use chapter, because Vermont Superior Court’s Environmental Division uses the plan to determine Act 250 permits.
Catlin said the Selectboard responded with “less than enthusiasm” to the JAM Golf–inspired language, preferring softer language when it read a draft of the plan last summer.
“I understand the thinking behind JAM Golf but wonder how politically it can be implemented in a town plan? Especially in a town like Dummerston, where we try to get consensus that is at least OK to most,” said Caitlin.
The WRC planners say public involvement at every stage is crucial, even past final approval.
Piet van Loon, Windham Regional Commissioner representing Newfane for the WRC, said there should be public involvement at every meeting.
An open, inclusive process needs public involvement even if public input doesn’t make the process streamlined, said Bennett.
In Wilmington, for example, in addition to the public meetings, Selectboard members took different chapters of the town plan and solicited input from people in the community they felt had expertise or stakes in specific areas.
Catlin hopes community involvement remains high even after Dummerston’s plan is adopted.
Dummerston experienced a few heated discussions at its town plan hearings.
But Caitlin feels the process of hashing the plan out within a community and building consensus makes for a better plan.
“At the base, everyone wanted what was best for Dummerston,” she said.
Looking into the future?
McMahon tells each town she works with that if those writing the plan include something important to them, they must be specific.
“They want to be visionary. They don’t want to be telling. They’re scared of ‘shalls,’” said McMahon.
She said if townspeople can’t get behind a goal, they shouldn’t write it down.
“Towns need to be mindful of their definitions,” Campany said.
Definitions in town plans are important, he said, and advised planning commission members to double-check for clarity. It’s OK to refer to something like a state document for the definition of a wetland or wildlife corridor rather than reinventing the wheel, he noted.
“Over time, case law tends towards greater specificity as courts narrow their own rulings,” Bennett said.
“Don’t be afraid of the ‘big C.’ [Courts] are there to vet. You’ve done all you can do. Don’t worry about being challenged. Be paralyzed by the fear of being sued, and you won’t be able to do anything,” said Campany.
“The lesson here is planning is a continuous process,” said van Loon.