Ongoing Act 250 revision focuses on climate, forests, ridgelines, and the dreaded ‘permit process’

By Guy Page

January 22, 2020 – Reading about the Legislature’s ongoing effort to revise Act 250, Vermont’s land use and development law, is both intimidating and important.

And that’s a problem. Eyes unused to environmental regulatory language are apt to glaze over after just a few paragraphs discussing “criteria” and “jurisdiction.”

And there are a lot of paragraphs. New ideas, testimony and drafts just keep coming. Interest is high, and with good reason. Perhaps more than any other law in the Vermont Statutes Annotated, Act 250 governs the physical landscape and economy of Vermont for the rest of the century. Compared to Act 250, every other Vermont law is just tweaking.

If ever a topic screamed for a succinct read for interested people, it’s the ongoing revision of Act 250. So here it is – the “Act 250 Revision for Dummies.”

History

The 1970 Legislature passed Act 250 to pump the brakes on fast-paced development of big projects that were altering the landscape, especially in ski areas and towns. Act 250 defines the kind of development needing review (“jurisdiction”), and what impacts need review (“criteria”). It sets forth both the rules and the permitting structure. The framers hoped good projects would sail through the permitting process and bad projects could be directed to become good.

How has it worked in practice? That depends on who you talk to. Generally speaking, growth control advocates swear by Act 250. Well-conceived regulations and citizen involvement have prevented many a misguided eyesore, they say. Act in haste, repent at leisure! Yet many developers swear at it – especially the permitting process, which they say takes too long and tilts too much to people with no financial skin in the game.

‘Act 250 protects the Vermont dream of an orderly, unpolluted society.’ Or, ‘Act 250 kills the dreams of Vermonters who want to improve their lives.’ Hang around Act 250 long enough, you’ll hear both points of view.

The 2017 Legislature created the Commission on Act 250: the next 50 Years to update the law to serve Vermont’s future. After a half century, does Act 250 need new jurisdiction – i.e. different development projects to fall into the Act 250 bucket? How about criteria – have notions about ‘development impacts’ evolved over 50 years?

After due deliberation, last January the Commission’s report landed with an 83-page thud on the table of the House Committee of Natural Resources, Fish & Wildlife, chaired by Amy Sheldon (D-East Middlebury), environmental scientist and planning consultant and former Act 250 review board member. No-one disputes she’s got the professional chops necessary to guide this committee.

Under Sheldon’s direction the committee spent most of 2019, and likely will devote most of 2020, conducting extensive, exhaustive review. When the House is done, the bill will have to go to the Senate. No-one knows when this work will be finished, or what it will eventually require.

Revision Highlights

Changes proposed to date would address:

Climate Change: projects must avoid, minimize or mitigate greenhouse gas emissions and be designed and built with materials to withstand and adapt to climate change. This includes project construction and operation and vehicular activity associated with it. GHG that can’t be avoided must be minimized; GHG that can’t be minimized must be mitigated. Also, the committee may require enhanced energy codes for builders.

Local control: Municipal and county boards must stay within the boundary set by Act 250. When local control conflicts with Act 250, Act 250 wins. 

Ridgelines: The current revision reduces the law’s elevation threshhold for Act 250 jurisdiction from 2500 to 2000 feet above sea level. If you want to build above 2000 feet, you’ll need an Act 250 permit. However, the Scott administration would prefer enforcing ridgeline protection over imposing an arbitrary Feet Above Sea Level standard. The committee will consider this change in emphasis, she told House Democrats this week.

Interstate exits and on-ramps: The current Act 250 doesn’t require review for development in these economically valuable, but (some say) visually and environmentally sensitive areas. The new Act 250 would take jurisdiction.

Forest protection: the revision would not ban development, but would direct it to fringes of the forest property. For example, long driveways that penetrate to the center of a forested parcel would be frowned upon. In general, forests would not be “fragmented” or broken up by development.

Slate quarries: proposed changes would require more Act 250 oversight and site registration. The slate business (most of it in Rutland County) isn’t the economic engine it once was, but it’s still a living for some Vermonters who want it to stay that way and who are concerned the changes will hasten the demise of the industry.

Permit process changes would:

1. Abolish current regional district commissions and replace with one five-person review board, including three permanent, fulltime members and two others rotating in and out based on geography. For example, a St. Johnsbury project might draw two members from Caledonia County. This hybrid would (supporters hope) limit regional inconsistencies and provide local flavor and know-how.

2. Send appeals directly to the Vermont Supreme Court. At present appeals go to the state environmental board and then, if necessary, to the Supreme Court. The revision cuts out the appeals Middle Man.

3. Exempt projects otherwise under Act 250 jurisdiction if located in certain urban, downtown districts.

4. Require developers to meet with affected landowners before the hearings start.

Okay – but will the permit process be quicker? For developers, time is money. Rep. Thomas Bock (D-Chester) last week asked Sheldon if the permitting process would be faster. Sheldon paused a moment, and responded: “It would be more consistent. If we move to the professional board, it would be with the intention that it be more consistent.”

For more information see the Act 250 folder on the Natural Resources Committee page on the Legislature’s website.