There’s a lot for advocates of both the environment and development to love in the package of proposed changes to Vermont’s landmark land use law, Act 250, now working its way through legislative committees.
Environmental groups applaud new language meant to promote energy efficiency, protect unbroken tracts of forest, keep wildlife corridors intact and reduce greenhouse gas emissions from development.
Developers are happy that critics of their projects would only get two chances to challenge them instead of three, streamlining the review process to become faster, more predictable and less expensive.
And administration officials appreciate that development in downtowns would be exempt from Act 250 review — which could incentivize building housing closer to public transit and revitalize depressed rural town centers.
But members of the House Natural Resources, Fish and Wildlife Committee sure weren’t feeling the love earlier this month when they considered another change — shrinking the role of nine district environmental commissions that administer Act 250. Critics seized on plans to reduce the responsibility of the three-member citizen panels as an attack on the very heart of Act 250.
“This is a disaster waiting to happen,” Brooke Dingledine, a veteran land use attorney, warned the committee earlier this month. “I implore you, please, think about the Vermonters who are going to be harmed.”
Of the dozens of changes proposed to bring Vermont’s seminal 1970 land use law into the 21st century, none have provoked as much soul-searching as the calls to redefine — or eliminate — the nine district commissions.
For 50 years, these boards of local residents have decided whether proposed developments comply with Act 250. The law’s 10 criteria require that developers minimize a project’s impact on air and water quality, wildlife habitat, traffic, aesthetics, and schools.
“There is a really strong attachment to the idea of district commissions being a core element of Act 250,” said Tom Little, chair of the Chittenden County district commission for the last 17 years. Little is also an attorney who has represented Seven Days.
Especially in the early years of Act 250, district commissions made frequent headlines as they hosted vigorous public debate and gave controversial projects a thumbs-up or -down. Commissions rejected a number of vacation home developments and, most famously, said no to a proposed 82-store Pyramid Mall in Williston in 1978.
But as precedents have accumulated and developers, engineers and lawyers have adjusted to Act 250’s requirements, the number of hard-fought cases has diminished. The district commissions almost always approve developments, though often with conditions attached to mitigate impacts.
Still, the panels serve a vital role in educating the public and convening “user-friendly” community discussions about proposed developments, whether a new subdivision or expansion of a quarry, said Ed Stanak, a retired district coordinator.
“Whether you have a PhD or an eighth-grade education, or not even eighth grade, you can come to a district commission and have your day in court, so to speak,” Stanak said.
In 2018, a special legislative panel charged with proposing updates to the sweeping law concluded that the local panels should be strengthened and their members receive a raise in their $50-a-day pay. Last year, the House Natural Resources Committee seemed to be leaning in that direction.
Then, last month, a joint proposal drafted by a leading environmental group, the Vermont Natural Resources Council, and Gov. Phil Scott’s administration called for eliminating district commissions. Under the initial proposal, they would have been replaced by a statewide Natural Resources Board made up of three full-time commissioners with experience in land use and environmental regulation, plus two nonvoting commissioners from the region where the proposed project was located.
The goal was to shorten and professionalize a review process that critics argued had become inconsistent, expensive and duplicative.
Currently, commission decisions can be appealed to the environmental division of the Vermont Superior Court and, from there, to the state Supreme Court. Developers have long complained about this three-step process.
“My premise has always been that we should do it right and do it once,” said Warren Coleman, a lobbyist who represents Pomerleau Real Estate, one of the largest commercial real estate developers in the state.
VNRC was amenable to scrapping the commissions largely because it recognized that a more professional process might bring consistency to “a broken system,” said Brian Shupe, the group’s executive director.
“Since Act 250 was passed, projects are more complicated, and the science is more complicated,” Shupe said. “We believe the current system is no longer serving Vermont’s environment.”
“My head blew off my shoulders.” Ed Stanak
He noted that even some district commissioners agree the system is flawed, pointing to the testimony of Joslyn Wilschek, an alternate member of the District 5 commission covering Washington and Lamoille counties. Once a district commission decision is appealed, all the work that went into it is “tossed aside,” and the environmental court starts from scratch, she told the House Natural Resources Committee.
Wilschek said she personally spent more than 40 hours on an application for a rock-crushing operation at Rock of Ages quarry in Barre. Her work and several days of testimony the commission took was all for naught.
“This is a disservice to the citizen volunteers and, I also think, at odds with the goal of having Commissioners, which is to provide a regional perspective,” Wilschek wrote.
Stanak said he was blindsided by the proposal to eliminate the commissions.
“My head blew off my shoulders,” Stanak said. “This is the heart of Act 250.”
Deane Davis, the Republican governor who signed Act 250 into law, had warned against centralizing decision making in Montpelier, but governors ever since have sought to do just that in a bid to exert influence, Stanak said.
The proposal would effectively make Act 250 reviews similar to rate cases before the Public Utility Commission: arcane, legalistic proceedings, impenetrable to the average citizen, Stanak said.
Dingledine agreed, saying that a board similar to the PUC would strip the local control and influence from decisions and make it harder for citizens to participate.
“It is such an arduous and expensive process that it is impossible for anyone to have any kind of say there unless they have an attorney,” Dingledine said of the PUC.
Jon Groveman, policy and water program director at VNRC, said such concerns are “hyperbolic” and ignore the language in the bill meant to ensure civic participation.
“We have said from the beginning that there needs to be a meaningful regional component,” Groveman said, “and it has to be accessible to citizens, not just lawyers.”
Rep. Amy Sheldon (D-Middlebury), chair of the House committee, initially pushed back on the creation of a statewide board, then worked to find ways to preserve as much local influence as possible.
The committee ultimately narrowly passed a version that would give voting rights to the two regional members of the statewide board. It would also require the state board to hold hearings on major projects in the region where they would be located. And it would preserve the district commissions, giving them oversight of minor permits and “pre-application meetings” for major projects. The committee also proposed to double the pay of district commissioners, to $100 a day; when hearing major cases, they would be paid a rate commensurate with the three professional members’ earnings.
Sheldon has served as chair of her district commission and recalls presiding over contested cases that involved daylong hearings in a cold fire station. “You’re asking a lot of volunteers and citizens,” she said. “In a lot of ways, this may provide us an opportunity to make it a better process. That’s the goal.”
She acknowledged, however, that the concerns about loss of local control are valid and the creation of a state board reflects a compromise with the administration that she has struggled with.
“It’s the art of the possible,” she said. “We have to make compromises that meet people’s needs, and that’s what we’ve done.”
Stanak said the compromise would preserve the district commissions “in name only,” a move he branded a “hollow gesture, a cynical gesture” meant to paper over the clear loss of local control.
That’s one reason Rep. Paul Lefebvre (R-Newark) opposed the bill. He also criticized it for failing to resolve whether recreational trail networks would be scrutinized under Act 250 and said he found the changes to the district commissions fundamentally at odds with the spirit of the law.
“I just continued to see an erosion of the district commission powers and authorities, and I think it’s to the detriment of citizens and residents of given areas,” Lefebvre said.
The bill’s prospect of becoming law dimmed somewhat after last week’s committee vote, which was 6-3. Lefebvre said if two other lawmakers had been present, the vote would have been 6-5.
The bill heads next to at least two other House committees, where there likely will be debate about a proposed 50 percent increase in permit fees, before the Senate begins considering it. Sen. Chris Bray (D-Addison) predicted it would be “a heavy lift” for his Natural Resources and Energy Committee to attempt in a few weeks something that has taken the House three years to do.
Before the bill moved out of committee, Peter Walke, the deputy secretary of the Vermont Agency of Natural Resources, said the administration’s compromise with VNRC was “pretty delicately balanced.” Afterward he suggested the deal was listing.
“We’ve worked really hard with the committee to try to help them arrive at a bill that the administration would be supportive of,” Walke said. “It’s not there yet.”
The committee’s decision not to address questions about recreational trails is one major shortcoming, Walke said. Another is the decision to reduce the elevation where Act 250 applies. Currently, any project located above 2,500 feet requires Act 250 review. The bill calls for dropping that level to 2,000 feet. The administration supports changes that would protect ridgelines, but simply lowering the elevation risks bringing “vast swaths” of the state under Act 250 review unnecessarily, he said.
“There are many districts where legislators are going to have significant heartburn over that provision,” Walke said.
Little, the Chittenden County board chair, said the concerns about the loss of local control are a little odd given the paucity of public participation.
“There is to some extent a sentimental attachment to the district commissions and the notion of access to the local community,” he said. “In practice, in most of the Act 250 hearings I’ve chaired, nobody shows up.”
The original print version of this article was headlined “Out of Commission”
This article appears in Feb 19-25, 2020.
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This is some of the best reporting so far about the proposed legislation on Act 250. A few little additions:
As a successful party to an Act 250 case to protect a local swimming hole, years ago now, I discovered how challenging it was to become a “party” in the first place; and then how complicated and difficult that “quasi-judicial” process actually was (in addition to the fact that most regular people don’t know where to look for Act 250 proceeding notification). One series of recommendations from the Commission on the Future of Act 250 was to make it easier for public participation. People don’t usually show up to things they don’t know about until after the fact.
VHNRFW Committee Chair Amy Sheldon, “acknowledged, however, that the concerns about loss of local control are valid.” Yes–the current proposal is a full repeal of the democratic process that District Commissions and their coordinators help to facilitate. This is, as Ed Stanak points out, the very heart of Act 250. Without this Regional District Commission process–including the right to appeal it to Environmental Court for secondary review–it isn’t Act 250 anymore. Let’s say it how it is, without dressing it up: Placing decision-making power with an “enhanced NRB” located in Montpelier is the antithesis to Act 250’s democratically designed process.
(to be continued)
Part 2:
Regarding proposed changes to elevations under Act 250 jurisdiction, ecologists concerned with all of the implications of forest fragmentation and preserving sensitive ecosystems, (especially in the face of extreme weather events that accelerate with the conditions of climate change,) have determined that elevations from 1500 feet and up should be under Act 250 jurisdiction.
Act 250 is a review of larger scale developments under ten criteria identified to protect public safety, ecosystems, and economic concerns. Most permits go through the Act 250 process in a timely manner, sometimes needing alteration to accommodate environmental and other criteria. This is the intention and purpose of the law.
You can’t compromise with complex ecosystems like our watersheds, forests and wetlands. Nature is resilient when we work with it. And you cannot repeal the democratic nature, or diminish the purpose and heart of this law and still call it Act 250. Calling the current proposal “a compromise” is disingenuous.
Thank you for reporting!
While I respect Tom Little, I believe Renee has put her finger on the problem: the restrictions that narrow the eligibility for party status. I have seen the effects first-hand here in Essex. A few years ago, the Selectboard compromised with a developer over the fate of the Saxon Hill Forest. When one community member challenged the Board’s decision and mentioned Act 250, the then-Town Manager muttered under his breath, “You won’t get party status.”
Legal and environmental scholars have identified a major weakness in Act 250: Its lack of a comprehensive ecosystem review that overlaps and links with the 10 criteria. VNRC used to be in favor of including “cumulative effect,” a measure of what has happened to an ecosystem over time as more and more development occurs, but I think it has abandoned this objective given the compromises it has made with the Scott Administration.
What a sad turn in VT’s rich history of public participation.
In District 3 which I have chaired for the past 9 years, well over 90% of the hearings have concerned residents participating. We make good decisions balancing the interests of all parties. And very few, only 5 out of 404 applications statewide in 2018 were appealed to the E. court. The vast majority of the projects concern criteria 8 Aesthetics. The standard applied is that of the “average person.”. Who are we if not the average person.? Why are are “experts” needed? They are not. The system is not broken as some have suggested.
Tim Taylor
Chair District 3 Environmental Commission
The environmental, ecological, and populational contexts of each district vary, greatly in some cases. This variation, in combination with a majority volunteer staff, makes for a very unpredictable and highly subjective process. For example, the number of second homeowners in District 2 is much higher than other districts, thus limiting the inherent possibilities of public participation by geography. This lack of public participation, in combination with the higher average elevation of District 2, results in an unnecessary number of Act 250 permits with no public participation. The ratio of these contextual variables is very different for let’s say District 3, so the process works differently there.
It appears nowhere in this conversation is anyone taking into consideration the existing residences that fall under Act 250 jurisdiction simply because of elevation. Most of the public commentary has been directed at commercial or large-scale residential development. These residents’ homes need an Act 250 permit before they can sell their house or even paint it a different color. For many Vermonters, this process is a huge financial hardship that makes upward mobility impossible. Ask any resident in Woodford or Searsburg above 2500’.
Once again, Southern Vermont has been largely left out of the conversation.
This process is systemically broken and inconsistently governed. It needs to be objectively re-constructed sans political agendas for it to truly work as intended.