de novo hearing in Vermont

2019In a de novo hearing, the Court is directed to Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (quoting In re Poole, 136 Vt. 242, 245 (1978)). based in the fact that the Town was unable to review certain aspects of the proposed application in the first instance due to insufficient evidence.

2016In a de novo hearing or trial, the Court hears the evidence anew “as though no decision had been previously rendered.” In re Poole, 136 Vt. 242, 245 (1978).

2021Yet the same statute requires the Court to conduct a de novo hearing, “where the case is heard as though no action whatever has been held prior thereto.” See 10 V.S.A. § 8504(h); Chioffi v. Winooski Zoning Bd., 151 Vt. at 11 (quotation omitted) (discussing de novo trials).

2021While, in a de novo hearing, we are directed to consider the pending application “as though no action whatever had [previously] been held,” Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989), we are limited “to consideration of the matters properly warned as before the local board.” In re Maple Tree Place, 156 Vt. 494, 500 (1991).

2025Thus, the enabling statute establishes a standard of review somewhere in between a de novo hearing that treats the agency decision as nonexistent and “usual appellate review, since the board may evaluate evidence in record form, as well as receive direct testimony.” In re Wheelock, 130 Vt. 136, 140 , 287 A.2d 569, 572 (1972) (describing review by Employment Security Board as set forth in 21 V.S.A. § 1344); see Madison, 163 Vt. at 368-69 , 658 A.2d at 542 (noting that courts and commentators have distinguished between terms “hearing de novo” or “trial de novo” and term “review de novo”).

2025Thus, the enabling statute establishes a standard of review somewhere in between a de novo hearing that treats the agency decision as nonexistent and “usual appellate review, since the board may evaluate evidence in record form, as well as receive direct testimony.” In re Wheelock, 130 Vt. 136, 140 , 287 A.2d 569, 572 (1972) (describing review by Employment Security Board as set forth in 21 V.S.A. § 1344); see Madison, 163 Vt. at 368-69 , 658 A.2d at 542 (noting that courts and commentators have distinguished between terms “hearing de novo” or “trial de novo” and term “review de novo”).

2021Div. Feb. 17, 2021) (Durkin, J.) former Environmental Board also took this approach, deferring action on other Act 250 criteria, when it held a de novo hearing “solely on the issue of compliance with [C]riterion 10.” In re Green Peak Estates, 154 Vt. 363, 365 (1990).

2013See 10 V.S.A. § 8504(h); V.R.E.C.P. 5(g); see also, e.g., In re Green Peak Estates, 154 Vt. 363, 372 (1990) (“In a de novo hearing, the tribunal hears the matter as if no prior proceedings had taken place.”).

2021While, in a de novo hearing, we are directed to consider the pending application “as though no action whatever had [previously] been held,” Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989), we are limited “to consideration of the matters properly warned as before the local board.” In re Maple Tree Place, 156 Vt. 494, 500 (1991).

2005We have held that notwithstanding the environmental court’s de novo standard of review, “a remand may be appropriate ... where the court is called upon to ‘address[] new issues never presented to the planning commission and on which interested persons have not spoken in the local process.’” Timberlake Assocs. v. City of Winooski, 170 Vt. 643, 644 , 756 A.2d 774, 776 (2000) (mem.) (quoting In re Maple Tree Place, 156 Vt. 494, 500 , 594 A.2d 404, 407 (1991)).

2025Thus, the enabling statute establishes a standard of review somewhere in between a de novo hearing that treats the agency decision as nonexistent and “usual appellate review, since the board may evaluate evidence in record form, as well as receive direct testimony.” In re Wheelock, 130 Vt. 136, 140 , 287 A.2d 569, 572 (1972) (describing review by Employment Security Board as set forth in 21 V.S.A. § 1344); see Madison, 163 Vt. at 368-69 , 658 A.2d at 542 (noting that courts and commentators have distinguished between terms “hearing de novo” or “trial de novo” and term “review de novo”).

2025Thus, the enabling statute establishes a standard of review somewhere in between a de novo hearing that treats the agency decision as nonexistent and “usual appellate review, since the board may evaluate evidence in record form, as well as receive direct testimony.” In re Wheelock, 130 Vt. 136, 140 , 287 A.2d 569, 572 (1972) (describing review by Employment Security Board as set forth in 21 V.S.A. § 1344); see Madison, 163 Vt. at 368-69 , 658 A.2d at 542 (noting that courts and commentators have distinguished between terms “hearing de novo” or “trial de novo” and term “review de novo”).

2024See Lindquist, 174 Vt. at 183 (“given the complete lack of a record in this case, the court should have conducted a de novo hearing”).

2018See Lindquist, 174 Vt. at 183 (“given the complete lack of a record in this case, the court should have conducted a de novo hearing”).

2009See 21 V.S.A. § 670; Pitts v. Howe Scale Co., 110 Vt. 27, 34-35 , 1 A.2d 695, 698 (1938) (noting that workers’ compensation law contemplates county court’s de novo review of administrative decision).

2009See 21 V.S.A. § 670; Pitts v. Howe Scale Co., 110 Vt. 27, 34-35 , 1 A.2d 695, 698 (1938) (noting that workers’ compensation law contemplates county court’s de novo review of administrative decision).

2003In a de novo proceeding, the Board is required to hear the issues “as if there had been no prior proceedings in the district commission.” In re Killington, Ltd., 159 Vt. 206, 214 , 616 A.2d 241, 246 (1992).

2003In a de novo proceeding, the Board is required to hear the issues “as if there had been no prior proceedings in the district commission.” In re Killington, Ltd., 159 Vt. 206, 214 , 616 A.2d 241, 246 (1992).

2003A decision of the Roard “will not be overturned unless it is shown to be clearly erroneous.” In re AFSCME, Local 490, 153 Vt. 318, 321 , 571 A.2d 63, 65 (1989); see also Lamare v. N. Country Animal League, 170 Vt. 115, 124 , 743 A.2d 598, 604 (1999) (“Discovery rulings are within the sound discretion of the, trial court and will not be disturbed on appeal absent a clear abuse or withholding of that discretion.”). ¶ 8.

2003A decision of the Roard “will not be overturned unless it is shown to be clearly erroneous.” In re AFSCME, Local 490, 153 Vt. 318, 321 , 571 A.2d 63, 65 (1989); see also Lamare v. N. Country Animal League, 170 Vt. 115, 124 , 743 A.2d 598, 604 (1999) (“Discovery rulings are within the sound discretion of the, trial court and will not be disturbed on appeal absent a clear abuse or withholding of that discretion.”). ¶ 8.

2024Plum Creek Maine Timberlands, LLC v. Vermont Department of Forests, Parks & Recreation, 2016 VT 103, ¶30 (“Where there are questions about “complicated methodologies within an agency's expertise” a reviewing court, even in the context of a de novo hearing, must give deference to the agency's decision.”) (citing In re Appeal of ANR Permits in Lowell Mountain Wind Project, 2014 VT 50, ¶ 16 ).

2018Dep't of Forests, Parks & Rec. , 2016 VT 103 , ¶ 25, 203 Vt. 197 , 155 A.3d 694 (explaining agency determinations regarding "the proper interpretation of policy or methodology within the agency's expertise are entitled to deference, even where there is a de novo hearing in the superior court"); In re Woodford Packers, Inc. , 2003 VT 60 , ¶ 12, 175 Vt. 579 , 830 A.2d 100 (mem.) (deferring to agency interpretation of "floodway" and "floodway fringe" in Act 250 permit proceeding because ANR had authority to define terms based on plain language of statute). ¶ 21.

2021Albans, LLC, 2011 VT 87, ¶ 10 , 190 Vt. 259 ) (indicating that “a de novo hearing would cure any harm resulting” from a conflict of interest below).

2021Albans, LLC, 2011 VT 87, ¶ 10 , 190 Vt. 259 ) (indicating that “a de novo hearing would cure any harm resulting” from a conflict of interest below).

2006By authorizing a de novo hearing, the statute plainly empowers the Board “to compel testimony and evidence by subpoena, examine witnesses and issue written findings.” In re Danforth, 174 Vt. 231, 238 , 812 A.2d 845, 851 (2002).

2006By authorizing a de novo hearing, the statute plainly empowers the Board “to compel testimony and evidence by subpoena, examine witnesses and issue written findings.” In re Danforth, 174 Vt. 231, 238 , 812 A.2d 845, 851 (2002).

2002Authorization to conduct a de novo hearing means that “the case shall be heard the same as though it had not been heard before.” Bookstaver v. Town of Westminster, 131 Vt. 133, 136 , 300 A.2d 891, 893 (1973).

2002Authorization to conduct a de novo hearing means that “the case shall be heard the same as though it had not been heard before.” Bookstaver v. Town of Westminster, 131 Vt. 133, 136 , 300 A.2d 891, 893 (1973).

2026See Connors v. Town of Dorset, 134 Vt. 233, 236 (1976) (explaining that even if there was an error in proceedings before BCA, it was cured by de novo proceeding in civil division).

2025“In conducting a review de novo of a challenged finding or conclusion, a justice must come to an independent decision based on the record” and “[t]he justice need not pay any deference to the decisions of the lower court when reviewing the challenged findings and conclusions.” State v. Madison, 163 Vt. 390, 393 (1995).

2024See Gavala v. Claasen, 2003 VT 16, ¶ 7 (“[T]he effect of allowing live testimony upon request of any party would be to transform almost every ‘appeal’ into a de novo hearing, since litigants will realize that the best way to respond to one live witness is to produce other live witnesses.”).

2021See Sullivan, 2013 VT 71, ¶ 39 (affirming under either de novo or clear-error review). 15 agree with the trial court and conclude that defendant’s statements to the police were given voluntarily. ¶ 39.

2018See State v. Sinclair , 2012 VT 47 , ¶¶ 15-17, 191 Vt. 489 , 49 A.3d 152 (applying a de novo standard to review coram nobis petition on appeal).

2018See State v. Sinclair , 2012 VT 47 , ¶¶ 15-17, 191 Vt. 489 , 49 A.3d 152 (applying a de novo standard to review coram nobis petition on appeal).