DRB vs. ZBA
Vermont state law gives municipalities the right to regulate local land use, if they so choose. However, if they invoke this right, municipalities must choose between two main regulatory structures that have been created by the state. The first option is to create a Planning Commission (PC) and a Zoning Board of Appeals (ZBA). Largely because it existed first, this is the form used in a majority of Vermont’s cities and towns. The second option, created by amendments to state law in 1994, allows municipalities to instead create a PC and a Development Review Board (DRB), which subsumes all of the responsibilities of the ZBA and the land use regulation functions of the PC. Each of these two structures has distinct pros and cons, and the size and development climate of individual municipalities will generally dictate the one that is best.
Planning Commission and Zoning Board of Appeals
The traditional PC and ZBA regulatory structure assigns the PC its traditional long term planning functions as well as a number of project-specific land use functions. Long term planning functions include creating and updating the Town Plan and Zoning Bylaws for adoption by the town’s legislative body, undertaking studies and making recommendations on development, transportation, and conservation, preparing building codes, and preparing a capital budget.1 These are legislative functions, in that they involve deliberations and require input from the community. The PC is there to create policies that serve the community’s needs. However, the PC also has a number of quasi-judicial functions such as reviewing and approving subdivisions and site plans. Quasi-judicial functions are different from legislative functions in that they are not designed to necessarily determine what is best for the community, but merely apply existing policies and regulations to individual situations. The ZBA’s function is purely quasi-judicial, and its responsibilities include considering requests for conditional use permits, reviewing decisions from the zoning administrator, and granting zoning variances. Essentially, while the PC’s quasi-judicial functions mainly involve reviewing applications for land development, the ZBA’s functions focus mainly on zoning issues.
The main benefit of this structure is that it allows the PC to create the policies that it will also make decisions on. Ideally, this means that the policy makers will be well informed by the conditions that they are creating in the real world. The problem with this, however, is that it can make it easy for PC members to confuse their roles in a given situation. When making a decision about a subdivision, the PC is not empowered to make a decision about whether or not the subdivision will be good for the community, but rather whether or not the subdivision is legal. When a PC acts as a legislative body in a quasi-judicial situation the rights of property owners can be violated.
Planning Commission and Development Review Board
In order to avoid these situations municipalities can instead use the PC and DRB structure. Unlike the ZBA, the DRB is responsible for subdivision review and site plan review, in addition to all of the quasi-judicial functions that the ZBA would be responsible for under the alternative structure. This allows the PC to focus on its legislative functions, and allows the separate DRB body to focus solely on quasi-judicial proceedings. By eliminating the dual role of the PC, the risk of PC members confusing which role they should be acting in is dramatically decreased. Thus, by separating legislative and quasi-judicial functions, the PC and DRB structure can allow the DRB to more fairly make narrow decisions on land use, while the PC can more effectively concentrate on the broader task of creating regulatory policy.
The DRB and PC structure does, however, have a disadvantage. The PC and ZBA structure gives the PC the benefit of learning about making bylaws through their role in applying them to real world situations. As a result, communities have expressed concern that “planning may occur in a vacuum if the planning commission does not have the opportunity to interpret and apply the bylaws.”2 The Vermont League of Cities and Towns suggests that this can be avoided through regular meetings, or by appointing a few members to both panels.3 This, combined with the fact that many communities tend to favor the status quo may explain why municipalities choose not to switch to a DRB and PC form. Regardless, according to the VLCT, 68 of 190 Vermont towns surveyed have chosen to create DRBs, while 88 of 190 towns still have ZBAs.4 This is an increase from 42 of 153 responding towns reporting to have DRBs in 2006.5 This suggests that a growing number of Vermont Communities are choosing to switch in order to embrace the advantages of the DRB and PC structure.
The League of Cities and Towns is a wonderful resources for communities. Their on line and staff resources are there to help town boards navigate their obligations.
Essentials of Local Land Use Planning and Regulation – Vermont League of Cities and Towns. An “operator’s manual” for local land use planning that contains a helpful summary of the DRB and ZBA structures.
Creating a Development Review Board – Vermont League of Cities and Towns. Explains the benefits and drawbacks, as well as the process of conversion to a PC and DRB structure.
1 24 V.S.A. §§ 4325, 4384-4385, 4441-4442 (Powers and duties of planning commissions).
2 Vermont League of Cities and Towns. Creating a Development Review Board.
4 Vermont League of Cities and Towns. 2008 Vermont Municipal Land Use Regulation Practices and Fees.
5 Vermont League of Cities and Towns. 2006 Vermont Municipal Land Use Regulation Practices and Fees.