Two Vermont HOAs lost their appeal for want of a lawyer
Two Vermont HOAs lost their appeal for want of a lawyer
2026-09-19 · Vermont · Courts
Three Vermont homeowners associations fought a 32-unit development next door. Two of them stopped being parties before the case was decided, for a reason that had nothing to do with the merits.
In re Wheeler Parcel Act 250 Determination, No. 24-AP-239, 2025 VT 28, was decided by the Vermont Supreme Court (Reiber, C.J.) on May 23, 2025. It is a published opinion.1
The case
Neighbours — including the Inverness HOA, the Glen Eagles HOA and the Villas at Water Tower Hill HOA — appealed a District 4 Environmental Commission Act 250 permit for a 32-unit residential project at Dorset Street and Park Road in South Burlington. The Supreme Court affirmed the Environmental Division on Criteria 1, 5(A), 8 and 10, and rejected an unclean-hands and material-misrepresentation attack. Findings were reviewed deferentially and were not clearly erroneous.
The procedural ruling that matters more
In the Environmental Division below, Inverness HOA and Glen Eagles HOA were stripped of appellant status and converted to “For Information Purposes Only” for failing to retain counsel as ordered. The Villas at Water Tower Hill HOA proceeded through its president as a non-attorney representative below, and pro se on appeal.2
What “For Information Purposes Only” means
It means the association receives filings and knows what is happening, and can do nothing about it. It cannot put on evidence, cross-examine, brief an issue, or appeal.
Two Vermont associations that organised, voted, and committed to opposing a development ended the case as spectators to it.
Why this catches associations specifically
An incorporated association is a separate legal person. In Vermont, as in most jurisdictions, a corporation generally cannot be represented by a non-lawyer officer in a contested proceeding — the board president who runs the annual meeting cannot argue the association's case.
The third association in this case proceeded through its president below and pro se on appeal, and was not stripped of status. That is not an endorsement of the approach; it is a record of what happened in one proceeding. What the docket shows is that representation was settled by an order, and that two of the three associations lost party status rather than meet it.
Where the money comes from, and whether the board can spend it
Litigation is a common expense, and in Vermont the budget process is negative-option ratification under 27A V.S.A. § 3-123: the board adopts, owners receive a summary within 30 days, a ratification meeting follows in 10 to 60 days, and the budget is ratified unless a majority of all owners reject it.
Where litigation costs arrive mid-year, § 3-123(c) lets the board declare a special assessment by a two-thirds vote where it “is necessary to respond to an emergency”; it becomes effective immediately, and the funds may be used “only for the purposes described in the vote.”
Neither mechanism reaches a Vermont community created before January 1, 1999 — § 3-123 is on neither § 1-204 retroactive list.
What the board may keep confidential
Section 3-108 permits executive session for “existing or potential litigation or mediation, arbitration, or administrative proceedings” and for consultation with the association's attorney — but no final vote or action may be taken there.
Section 3-118(c) lets the association withhold from owner inspection records concerning “existing or potential litigation or mediation, arbitration, or administrative proceedings”, attorney-client and work-product material, and records of an executive session. A litigating Vermont association is not obliged to hand its strategy to the owner who disagrees with it.
The wider Act 250 picture just changed
The Act 250 framework these associations were litigating under has been substantially rewritten since. Act 152 of 2026, signed June 16, 2026, deleted the road-jurisdiction trigger that was to take effect July 1, 2026, repealed the Tier 2 and Tier 3 provisions of Act 181 of 2024, and moved the remaining jurisdictional changes from December 31, 2026 to January 1, 2028.
What to watch next
No Environmental Division decision from 2024 through September 2026 turns on restrictive covenants or condominium declarations as such. Vermont associations appear in that forum as neighbours, not as communities.
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