Could New Hampshire's Hybrid Appeals End Vermont's 50-Year Housing Stagnation Under Act 250?
A new, professional Land Use Review Board (LURB) is currently studying whether to take over the Act 250 appeals process from the state’s court system.
Imagine a local high school basketball championship, officiated by a team of trained community volunteers. The game is hard-fought, and a controversial foul call in the final seconds decides the winner. The losing team, believing the call was wrong, files an appeal.
But under the rules, the appeal doesn’t just involve a higher official reviewing a video of that single play to see if the call was correct. Instead, the rules require the entire 32-minute game to be replayed from scratch the following week, this time in front of a professional, statewide judge. The original game, the efforts of the players, and the judgment of the volunteer officials who were on the court are all set aside for a complete do-over.
This is, in essence, the high-stakes debate at the heart of Vermont’s Act 250 land use law.
The Future of Act 250: Why Vermont is Debating Where Land Use Appeals Should Be Heard
Vermont’s landmark environmental law, Act 250, is at a crossroads. A new, professional Land Use Review Board (LURB) is currently studying whether to take over the Act 250 appeals process from the state’s court system. This debate, sparked by major 2024 reforms and fueled by a severe housing crisis, isn’t just a technical dispute; it’s a fundamental question about how Vermont will balance development, environmental protection, and public access to justice for decades to come.
To understand what’s at stake, Vermonters need to know the history of the law, how the current system works, and the powerful arguments from all sides.
A ‘Quiet Revolution’: The History and Structure of Act 250
Act 250 was born in 1970 from what is often called a “quiet revolution,” according to historical information from the state’s Act 250 program. In the 1960s, the new interstate highway system, the growth of IBM in Essex Junction, and a ski resort boom threatened to overwhelm Vermont’s rural towns with massive, unplanned development.
In response, Governor Deane Davis and the legislature created Act 250. Its design was unique. Instead of a central office in Montpelier, it empowered nine regional District Environmental Commissions made of lay citizen volunteers, a structure intended to keep decisions local.
These commissions review large projects against ten statutory criteria. These criteria, as listed in state law (10 V.S.A. §6086), are the heart of Act 250, forcing developers to prove their project:
Will not result in undue air or water pollution (Criterion 1).
Will not cause unreasonable traffic (Criterion 5).
Will not place an unreasonable burden on municipal services (Criterion 7).
Will not have an “undue adverse effect on aesthetics, scenic beauty, historic sites, or rare and irreplaceable natural areas” (Criterion 8).
For its first 35 years, Act 250 had a different appeals system. According to the Act 250 program’s history, decisions were appealed to the Vermont Environmental Board, a statewide body of lay citizens with diverse backgrounds (like realtors, engineers, and scientists). The Vermont Natural Resources Council (VNRC) notes that this board did more than just settle disputes; its decisions “brought these criteria to life” by creating a body of legal precedent that guided the entire program. In 2005, that all changed.
The Current System: How Act 250 Appeals Work Today
In 2005, the legislature abolished the Environmental Board’s appeal function and moved all Act 250 appeals to the Superior Court’s Environmental Division.
According to the Vermont Judiciary, this specialized court, staffed by two judges, was created to bring more procedural formality and legal rigor to the process. It handles not just Act 250 appeals but also those from municipal zoning boards and state agency permits.
The most important feature of this court, based on state law (10 V.S.A. § 8504), is its “de novo” standard of review. As legal analysis from the law firm MSK Attorneys explains, de novo means “from the new.” The court doesn’t just check the District Commission’s work for errors; it “wipes the slate clean” and holds an entirely new trial. All parties—the developer, state agencies, and citizen opponents—must present their entire case from scratch.
This system has clear trade-offs. It gives all parties a full, formal hearing. Legal analysts also note it provides flexibility, as parties often use the appeal period to negotiate settlements. However, it also devalues the initial District Commission hearing, which some parties may treat as a “dress rehearsal.”
Furthermore, groups like the VNRC argue the court process is “expensive, complicated and, therefore, difficult for citizens to navigate.” The Vermont Judiciary itself acknowledges this complexity, offering free clinics for self-represented litigants but cautioning that they are “held to the same standard as a lawyer.”
The Tipping Point: Act 181, the Housing Crisis, and the Birth of the LURB
This decades-old system was upended in 2024 by Act 181, a massive overhaul of Vermont’s land use laws.
The primary driver was Vermont’s severe housing crisis. According to an article in The Regulatory Review, estimates showed a need for 30,000 to 40,000 new housing units by 2030. A broad consensus emerged, as noted by the VNRC, that the old Act 250, which triggered review based on project size (like 10 or more units), was hindering the construction of dense, multi-family housing in town centers.
Act 181, as described in legislative summaries, did two major things:
It Created the LURB: It replaced the part-time Natural Resources Board with a new, full-time, five-member professional Land Use Review Board (LURB). According to a legislative report, LURB members are required to have expertise in fields like planning, development, and environmental science.
It Created a Tiered System: As The Regulatory Review explains, it changed Act 250’s jurisdiction from being based on size to being based on location.
Tier 1: Designated growth areas (like downtowns) where Act 250 review is largely eliminated to streamline housing.
Tier 2: Most of the state, where existing rules generally apply.
Tier 3: Critical natural resource areas, where development of any size will require review.
Crucially, Act 181 did not immediately transfer appeals to the new LURB. According to the Vermont Chamber of Commerce, this was a hard-fought compromise. Instead, the law mandated the LURB to conduct a comprehensive study—due to the legislature by November 15, 2025—on this very question. According to the study’s official mandate, the LURB must recommend whether appeals should be transferred to it or stay with the court, how to consolidate permits, and how to expedite housing appeals.
The Great Debate: Who Should Hear Appeals?
The LURB’s study, which includes a draft report released in October 2025 for public comment, is navigating a deep divide between Vermont’s major stakeholders.
The Case for the Court: Judicial Rigor
Led by the Vermont Chamber of Commerce, the state’s business and development community argues strongly for keeping appeals in the Environmental Division.
The Chamber has stated that a “legal appeal of a complicated development process requires a legal review in a court.” They have called the proposal to move appeals to the LURB a “poison pill,” expressing deep concern that a “politically appointed quasi-judicial board” lacks the necessary legal expertise and separation of powers. This position, which was also supported by the Vermont Association of Realtors, emphasizes the need for procedural due process and the formal protections of a courtroom.
The Case for the Board: Administrative Expertise
In direct opposition, the Vermont Natural Resources Council (VNRC) and other environmental advocates argue for returning to an administrative model.
The VNRC’s position is that a professional board would make the process more “consistent, efficient, and accessible to citizens.” They argue the current court system is “expensive” and “burdensome,” and that its case-by-case focus has led to a “stagnation” of Act 250 precedent, unlike the old Environmental Board which provided broad policy guidance.
The Hidden Hurdle: ‘On-the-Record’ Review
A critical detail in this debate, as highlighted in legal analysis by MSK Attorneys, is the standard of review.
If appeals move to the LURB, they would likely no longer be de novo (a new trial). Instead, they would be “on-the-record.” This means the LURB would only review the record from the District Commission hearing to check for errors.
This sounds more efficient, but legal analysis points out a major consequence: the initial District Commission hearings would have to become much more formal and trial-like. All parties, including citizen groups, would need to hire lawyers and expert witnesses for the first hearing, because any evidence or argument not “on the record” could not be brought up on appeal. This could, paradoxically, make the process more expensive and less accessible for the very citizens advocates hope to empower.
How Do Our Neighbors Handle This?
Vermont isn’t alone in this struggle. Neighboring states offer intriguing models that could offer a compromise.
New Hampshire: In 2020, New Hampshire created a Housing Appeals Board (HAB), as described by the Manhattan Institute. This is an expert, three-member administrative board that provides a faster, cheaper alternative to court, but only for housing-related appeals. Crucially, it has “concurrent jurisdiction,” meaning an appellant can choose to go to the HAB or the state’s Superior Court. The HAB is designed to issue a decision in 180 days.
Massachusetts: Massachusetts has a more aggressive “builder’s remedy” known as Chapter 40B. According to the National Low Income Housing Coalition, if a town has less than 10% affordable housing, a developer who is denied can appeal to a state committee. This committee can issue a “comprehensive permit” that overrides local zoning, and the burden of proof is on the town to justify its denial.
The lesson from these states, particularly New Hampshire, is that a hybrid “middle ground” is possible, such as creating a specialized, optional board just for housing appeals, without eliminating the judicial option for everyone else.
What Happens Next? The Options Facing Vermont
The LURB is set to deliver its final report to the legislature by its November 15, 2025 deadline. The legislature will then have to weigh the competing values.
Here are the core options Vermonters should understand:
Status Quo (The Court): Keep appeals in the Environmental Division. This prioritizes legal rigor and formal due process, which the business community favors. However, it fails to address the high costs and slow speeds that frustrate citizens and housing developers.
Full Transfer (The Board): Move all Act 250 appeals to the new LURB. This prioritizes speed, lower costs, and expert-driven precedent, as favored by environmental groups. However, it risks losing the right to a new trial (de novo review) and could make the initial commission hearings far more complex and expensive for all parties.
The Hybrid (A “Housing-Only” Board): Follow New Hampshire’s lead. Create a special, optional appeals panel within the LURB just for housing projects. This would directly tackle the housing crisis by creating a fast-track, while preserving the court system for all other projects.
The challenge for lawmakers will be to find a solution that unblocks needed housing development without sacrificing the public participation and environmental rigor that have defined Act 250 for over 50 years. The final decision will determine the future of Vermont’s landscape and the public’s role in shaping it.