Monday, February 7, 2011

Reviewing Land Use Decisions in Vermont & New Hampshire

Appeals of Local Land Use Decisions to the Vermont & New Hampshire Supreme Courts, 2007-2010
By Jennifer Rowe

Jennifer Rowe, a third-year student at Albany Law School and Senior Editor of the Albany Law Review, explores the treatment of local land use decisions by the high courts of the two states and asks what the treatment by each might reflect.

This paper examines land use decisions of the Vermont and New Hampshire Supreme Courts since 2007.  Planning and zoning are traditionally matters of local control, and the objective here was to find out how these local decisions fared in the appeals process in each state.  Vermont and New Hampshire are similar enough in many respects to be comparable, and yet significant differences may be found in the structure of land use law in the two states.  

Results show that there are subtle, but real, differences between the two highest courts on land use matters.  New Hampshire denies development more often; it overrides local land use decisions more often; it reverses the court below on substantive grounds more often.  One way of characterizing these differences might be to say that the New Hampshire court’s judges are greater “activists,” but this description does not tell the whole story.  Rather than lay all the responsibility for the court’s behavior at the doors of individual judges and their predilections, it makes sense to look more closely at the context in which the court functions and the kinds of decisions it is called upon to make.  It will be seen that differences in the statutory land use schemes of the two states could account for differences in the activity of the two courts.
Read the entire paper here.