During a break from an afternoon of highly technical testimony last week about how to modernize Act 250, Vermont’s landmark land-use law, Rep. Chris Bates (D-Bennington) shuffled back toward the committee room like a man condemned.
“I don’t want to go back in there,” Bates said, his eyes wide with bewilderment. “Most of this is literally over my head.”
Bates and fellow members of the House Natural Resources, Fish and Wildlife Committee have been struggling for much of the legislative session to understand and reach agreement on how to update the nearly 50-year-old law.
So far, they have little to show for it. Despite pledges from legislative leaders and Gov. Phil Scott to prioritize the effort this session, it now appears unlikely that the House committee, let alone the full legislature, will be able to complete its work this year — disappointing, but not surprising, many onlookers.
Some of the proposed changes are so consequential and controversial that hammering them out in a single session always struck some as unlikely. Among other issues, the committee is grappling with whether and how Act 250 should address climate change, discourage forest fragmentation, better protect sensitive habitats and promote city-centered development.
“Each and every one of these [changes] is … a hugely complex undertaking with decades of history behind it,” said Warren Coleman, a former general counsel for the state Agency of Natural Resources who is now lobbying the committee on behalf of Burlington-based Pomerleau Real Estate. “So trying to tackle all of them simultaneously is a Herculean task.”
Since 1970, Act 250 has required residential and commercial developments over a certain size to demonstrate that they will not unduly harm the environment or overburden community services. Outright permit denials have been rare. Commonly, however, regional citizen panels have mandated steps to mitigate a development’s impacts.
Almost since the day it became law, Act 250 has been a battleground, with supporters arguing that it has saved Vermont from rampant, shoddy development, and critics holding that it has constrained growth and discouraged new businesses.
“Whenever changing [Act 250] comes up, the developers scream, the environmentalists scream, the lawyers scream and the judges scream,” said Ed Larson, a lobbyist for the Vermont Forest Products Association.
“To me, Act 250 is like the state’s DNA. We should be very careful with the genome.” Sen. Chris Bray
Developers want more predictability, environmentalists want more enforcement, and property owners want to protect their rights and equity, he said.
This year those disagreements have centered on proposals to add 21st century environmental threats to Act 250’s oversight.
While other bills, such as a proposed tax on fuel to fund weatherization efforts or electric vehicle purchase incentives, are sometimes seen as more directly addressing climate change, the Act 250 update is this session’s “sleeper bill” on the issue, said Rep. Amy Sheldon (D-Middlebury), who chairs the House Natural Resources Committee.
Encouraging compact development near transit, limiting sprawl and protecting carbon-sequestering forests are all strategies Vermonters need to both address and adapt to a changing climate, according to Sheldon.
“If we don’t develop better, we’re not going to have the resources for us to have resilient communities,” she said.
So, in 2017, lawmakers created a six-member, bipartisan Commission on Act 250 to explore ways in which the law could be amended to address the world of 2019 and beyond.
The commission spent more than a year doing so — consulting experts, holding public hearings across Vermont and drafting a sweeping set of changes.
But that work hasn’t added up to speedy decision-making at the Statehouse, where most lawmakers aren’t versed in the complexities of the proposed amendments. “There were six people on the commission. That means there are 174 who weren’t,” Sen. Chris Bray (D-Addison) said, referring to the 180 legislators who must OK any revisions to Act 250.
Bray, who chairs the Senate Natural Resources and Energy Committee, said the pace of the House panel’s work is appropriate.
“To me, Act 250 is like the state’s DNA. We should be very careful with the genome,” Bray said. Even if the House doesn’t send the modernization bill to the Senate until early 2020, he said, the upper chamber could act before the two-year legislative session ends.
Scott’s administration has sought more modest revisions to the law, changes largely meant to streamline and bring consistency to the development review process.
One administrative priority is to exempt from Act 250 downtown areas that already have robust environmental rules. Rep. Charles Kimbell (D-Woodstock) introduced a bill that incorporates many of the administration’s ideas, but the measure has yet to receive much attention from Sheldon’s committee.
While she is intimately familiar with the subject from her time as chair of the Commission on Act 250, Sheldon said her fellow committee members, several of whom are new to the committee, have needed extra time to educate themselves.
The committee’s work also has been slowed by familiar dilemmas and disagreements over how specific proposed changes would affect various interest groups.
For example, environmentalists — led by the Vermont Natural Resources Council — want Act 250 to make it more difficult to chop up blocks of forest into smaller lots.
VNRC and others have long argued that Act 250 falls short because it doesn’t apply to the vast majority of residential development. Builders have learned how to keep most projects below the 10-acre size that typically triggers review under the law.
“We are chipping away at our forests and working lands though fragmentation. It’s extremely well documented,” said VNRC executive director Brian Shupe.
Environmentalists also support a proposed change that would trigger Act 250 review based on a project’s location, regardless of its size. All developments in sensitive ecological areas such as river corridors or above 2,000 feet in elevation would qualify. Projects above 2,500 feet are already automatically reviewed.
But forestry interests have pushed back hard against these changes. Larson, the forest industry lobbyist, said there are important open questions, such as whether a wetland in one corner of a lot should trigger Act 250 review for a project in the opposite, upland corner.
He also argued that loggers are already required to obtain water quality and other permits. Adding Act 250 review would create “over-the-top duplication” that would further burden an already struggling industry, he said. If Vermont puts any more stress on timberland owners, they’ll just become more likely to subdivide and sell their land to make ends meet, he said.
“I told them that this could backfire and actually accelerate fragmentation,” Larson said.
Scott, meanwhile, has stressed the importance of eliminating redundant planning and permitting efforts, particularly in downtowns that now have far more restrictive zoning rules than when Act 250 was first passed.
Similar intense arguments have sprung up around the proposal to remove the exemption that excuses slate quarries from Act 250 review.
Rep. Jim McCullough (D-Williston) said he felt sympathy for the hard-working families that own and work at slate quarries. But he said that neighbors’ concerns about noise and other impacts “pulled at our heartstrings,” while aerial images of the slate quarries in at least one town, Pawlet, showed they were “getting a total pass.”
“It looks like a demilitarized zone, and it’s totally without oversight,” McCullough said during a committee hearing last week, adding that he worries about impacts from unregulated expansion of the slate industry in coming years.
“It’s an environmental issue as well as a human issue,” he said.
That prompted Rep. Leland Morgan (R-Milton) to rebut the suggestion that there are any environmental problems with slate quarries.
“Other than aesthetics, we really don’t know it’s having any detrimental effects on anything,” Morgan said.
Ideological divisions on the committee are also simmering over how to handle appeals of Act 250 decisions made by the nine citizen-led district environmental commissions.
It’s not a new point of contention in Vermont. After years of argument, lawmakers in 2005 abolished the citizen body that heard appeals and gave the responsibility to the court system.
The House Natural Resources Committee is now considering a reversal of that choice, in the name of an appeals process that is faster, less expensive and more accessible to residents than are the courts. Lawmakers have been trying to structure a new citizen panel of five citizens with land-use and environmental law experience to hear appeals.
But critics argue the change is unnecessary and say there is no evidence it’ll be cheaper or faster. Bob Paolini, an attorney who represents the Vermont Bar Association, called the idea “an attack on the judiciary, and I just don’t think it’s warranted.”
The debate over the complexities of reforming the appellate process was the subject Bates dreaded returning to last week. In the committee room he shook his head, rolled his eyes and pulled his fingers through his hair.
“I have no idea what they are forming because I have no idea what it was before,” Bates said outside the room.
To fill the void, the committee has turned to lawyer-lobbyists with experience in Act 250.
Asked last week about new draft language on the appeals process, legislative lawyer Ellen Czajkowski, who is also new to the committee, turned to Jon Groveman, a past general counsel for the Agency of Natural Resources who now lobbies for VNRC. He acknowledged that he had drafted the language the night before.
Whether evidence of careful deliberation or legislative dysfunction, the pace has proven frustrating for environmental groups that thought the momentum from the Commission on Act 250 would carry over into the legislative process.
“I was hoping that it could have gone quickly, but I think that was naïve,” Shupe said.
Sheldon urged patience. With the work of educating her members largely done, she said, the panel has begun making some key decisions. Last Friday, for example, the committee referred the portion involving the new appeal process to the House Judiciary Committee for its input, though it’s unclear how quickly that committee will take it up.
“I have the philosophy of let’s go slow to go fast,” Sheldon said.
This article appears in Apr 10-16, 2019.
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Representative L. Morgan of Milton from Milton said, “Other than aesthetics, we really don’t know it’s having any detrimental effects on anything,” Maybe he was dozing when the District Coordinator testified about all the problems he’s had to deal with for the last 20 years – and the threat he received from an industry operator. And where was he when the testimony of a family who had a quarry open in their back yard that totally upset their lives.
The Rutland Herald has reported many instances over the years of everything from using quarry holes as dumps to the conflict with neighbors who have no recourse to Act 250.
Act 250 is meant to protect the environment and citizens from reckless business interests – not the other way around.
There’s too much interference in the quasi-judicial process. The Gov’s office calls the NRB, and they do whatever they’re asked from the 5th floor. They don’t uphold Commission decisions, and they undermine staff.
Repeal Act 250
In 1970, Act 250 said that if any commercial development were pre 1970, then you were grandfathered. Example: Where the state House is today. Lets say a neighbor moves in and doesn’t like the hours. He can not complain because they were doing it prior to 1970. Pretty simple right?
All of these slate quarries that are around today were started before 1970.
From 1970 to 1993-4 the current Act 250 coordinator read law and thought it was simple. His position was we were pre 1970. The new one did not. So he went to all slate quarries and told them to prove in writing that they existed pre 1970. The slate quarries could not do that. So we went to Legislature explained circumstances. They gave us a 1 year study committee. Unlike the one year study that Amy Sheldon heads, legislatures came down 17 times. One visited neighbors on scotch hill road, blissville road, upper road and route 153 in pawlet, VT. He said that no one had any complaints. When they voted on the Bill, the House passed 147-3, Senate voted 29-0-1. Gov Dean wanted some changes, we agreed. He signed Bill.
Currently let me tell you how ACT 250 works in 1980 when a company goes through ACT 250, all neighbors get a say. When they get Act 250 it can not be changed. If a neighbor moves next to that permitted company, they get no say. That is what is happening here. A neighbor moves next to a quarry, then complains. I know as a business person, when i dont do my homework and something back fires. I eat it. This neighbor want the state to do something for them.
My family has been personally affected by the ACT 250 exemption for slate quarries. I will be taking this to every Outlet I can find. I will be contacting mainstream media about this situation. We moved here a year-and-a-half ago not next to an active Quarry. In a community surrounded by 15 other homes. And 125+ homes in the village of west pawlet 1/2 mi away. There was nothing in our deed about quarries and their ability to reopen at ANY point in time for the foreseeable future!! When the Quarry down the road was casually mentioned when we were viewing this house I asked my agent wait they are no longer active, right? And was told no, no as he shook his head. No mention of act 250 exemption and their ability to reopen at any point in the future with no regulations and no permits no less. What other business can close its doors for 50 years and reopen with no notice, permits, regulations? This is insanity! We did not move in next to an active Quarry and then suddenly start complaining. That is a ridiculous notion. Nine months after we moved in unbeknownst to us there sat a small what would appear to the naked eye to be a pond next door to our property through the woods. We didn’t even know it was there I mean how many people walk their neighbor’s property before purchasing their home. Starting at 8 a.m. on a Saturday morning and continuing throughout the week and every weekend for the next two months we had an 18 year old man bulldozing 50 years of growth to the ground in preparation to “requarry” an old pit. Imagine my shock calling act 250 and finding out there is no regulations on these operations.
No limit to the depth they may dig, no set hours for blasting, or working. All day Saturday and Sunday is not out of the question as we saw. There is no one to come in and say wait a minute this site is next to an old town dump currently venting methane and 200 feet from the community sewer line this may not be a good idea! Not to mention it is in the center of our village! We all have drilled wells! I have three young children that play 150 feet from where this eighteen-year-old intends to blast!! A neighbor who has lived here his whole life told me 50 years ago when they blasted rocks flew through his window. Who will be held accountable if one of my children is injured? Another Neighbors Home suffered significant Foundation damage that was never repaired by the company. See it seems these companies have in-house lawyers to boot!! This is the state of Vermont. The Green Mountain State. I state that preaches environmentalism and they are allowing this destruction on an epic level in Rutland County. Please do an aerial view of West pawlet up to Fair Haven and look at the destruction that has occurred, ironically just over the Border in New York you seen no such destruction because New York has Common Sense regulations and requires the land to be reclaimed! This land will never be reclaimed with this exemption! Why would anybody want to move to these areas? When this young man bulldozed the wetlands I contacted the DEC. They came and verified the wetlands had been bulldozed and it was in their report. Where are the consequences?This entire area is surrounded by wetlands! And they are waking up!
You would not believe the life here! Endangered species, northern water snakes, frogs,Toad’s, lizards, we have two to three hundred little brown bats that are registered with the state residing in our attic. Our home is historic built in the mid-1800s!! One blast could rupture our sewer line and contaminate this entire communities water, we are talkin about 125+ homes! Is it worth it? Water is our most important resource, not slate! Vermont is living in the past, we need to protect the future, the children of Vermont! If you expect families to make their lives here you need to protect us in situations like this. This is not the Industrial Revolution anymore, we now know things that were once okay are really not! This is 2019!! Not 1919!!! There was a committee that reviewed a possible repeal of the exemption back in 2015 and here we are again! When will things change! Does it take a child having to die?? Would anyone out there be okay living 150 feet from an active Quarry? if so please! Buy my house! This exemption goes directly against our constitutional rights for the state of Vermont entitling families to the safe peaceful enjoyment of one’s property! I will make it my personal mission to share this in every Outlet possible! I will not stop, I am a mother protecting my children and I will do so at all costs! This story needs to get out people need to know how Vermont really is!! Repealing the exemption will not stop them from extracting slate, but will ensure neighbors have the right to enjoy their property as well, that they know when blast will occur, there will be set work hours, and agencies who will do Environmental Studies beforehand like we so desperately need!
Why is the Slate industry so set against this? Why are they so against offering their neighbors protections? Granite, marble they don’t have this exemption. We need to bring slate in line with the other extraction Industries! This is all just beginning right now in our town but once this really takes off I guarantee you will have many many more outraged Neighbors! I will be forming a coalition of neighbors against unregulated mining. I will not be bullied out of my house and I will never see my children’s quality of life destroyed. That I can promise you.
In regards to only destroying the aesthetic of the town. If a town doesn’t have a nice aesthetic who the heck wants to live there? That is the Allure of Vermont!! That is exactly why people come to Vermont, for the aesthetic!! Would anyone want to live in a town that has become a wasteland due to unregulated Industry taking advantage? I feel so bad for our neighbors on Route 22 in new york heading north towards granville. They used to have a beautiful Mountain View! You know what blocks their Mountain View now? A massive slate volcano. A mountain of waste “slag”. This will be here forever! These mountains will never go away, the ground itself will never reclaim them! You need permits to put up a billboard, or a windmill. But you can build a mountain and destroy your neighbors view shed and nobody tells you any different… this is so sick and I am so disappointed with Vermont.
Shawn Camara said:
“In 1970, Act 250 said that if any commercial development were pre 1970, then you were grandfathered…”
The words “doing it prior to 1970” meant “doing it”. They did not mean if you had a commercial operation in 1920, and stopped during the depression, you could start back up again in 1995 without going through Act 250.
Mr. Camara also said: “All of these slate quarries that are around today were started before 1970.”
But the vast majority were not working in 1970 and hadn’t been worked in decades.
He also said, “From 1970 to 1993-4 the current Act 250 coordinator read law and thought it was simple. His position was we were pre 1970.”
Yes, if the quarry was working in 1970, like Hilltop, it didn’t need to go through Act 250. But if you opened an old quarry that wasn’t operating in 1970, it should have gone thru Act 250. And if you were opening old quarries between 1970 and 1995 without going through Act 250 you were in violation of the same.
He followed with, “The new one did not. So he went to all slate quarries and told them to prove in writing that they existed pre 1970.”
Wow, a diligent public servant – though I really doubt he visited all the quarries. Maybe he actually just visited the ones that were working and realized some had been opened in violation of Act 250 between 1970 and 1995.
Yes, the industry had a lot of friends in the legislature back then including some relatives in the industry. They still do. But legislatures make mistakes as we all do. And when government does so they need to fix them. This is a chance for our Legislature to address a whopper.