Disagreement looms over Act 250 reform passed by House, Senate

By Lake Champlain Chamber

This past week, both legislative chambers passed Act 250 legislation. 

While over the past two biennia there has been plenty of work on Act 250, most of that work has been in the House and the Senate has been responding to what has been sent to them. This is a marked difference, with the Senate sending a hefty bill with issues the Legislature has been grappling with for years and the House sending a bill that mainly focuses on governance of the appeals process. 

The prevailing opinion among many observers is that both these bills are doomed due to disagreements the House, Senate, and Scott Administration have with each proposal. 

In the House: 

The House voted 92 to 49 to send H.492 to the Senate. The bill looks to bring the state back to the early 2000s. It restructures the Natural Resource Board into the Environmental Review Board (ERB) that will hear appeals instead of the Environmental Court. 

The ERB will have a full-time chair and have five members nominated by an Environmental Review Board Nominating Committee which will have seven members; three from the Governor, two from the House, and two from the Senate. The bill also creates a new pre-hearing discovery period with non-expert witnesses which will be non-admissible later in the process. 

Finally, it makes the decision of the District Coordinator the final decision if there is failure to appeal a District Commission jurisdictional opinion within 30 days following the issuance of the opinion.

It’s assumed the bill won’t have the strongest reception in the Senate as the Senate Committee on Natural Resources already passed a bill looking to study this issue rather than take action on it. The Administration has indicated in previous legislative proceedings that they are not in favor of this direction.

In the Senate

The Senate passed S.234 which aims to take a balanced approach to changes to Act 250. What’s in the bill:  

Forest fragmentation: new language creates a new jurisdictional trigger for natural areas in which the state feels development would lead to forest fragmentation. The bill also requires resource mapping for these areas.  

Road rule: language also creates a new jurisdictional trigger in instances when a new road for a driveway or entrance to development exceeds 800 feet or 2,000 feet of multiple roads or driveways.

Timeliness: If a municipality doesn’t respond with the impact of a project within 90 days, “the application will be presumed not to have an unreasonable burden on educational, municipal, or governmental services.”

One-acre towns: the bill looks to clarify the Act 250 jurisdiction in one-acre towns in the fallout of legal proceedings that previously had substantial changes to the rule and have since been reconsidered. 

Neighborhood development areas: under the bill a town may have a neighborhood development area if they allow four dwellings per acre. It also eliminates the requirement that the development within the NDA is currently served by sewer or wastewater infrastructure. 

Flood zones: in an effort to allow smart growth in neighborhood development areas, flood zones can be part of neighborhood development areas with suitable infrastructure. 

Priority housing projects (this section was eliminated with an amendment on the floor): The Senate Committee on Natural Resources and Energy this week eliminated the language that would have ARPA-funded projects amended criteria around priority housing projects (PHPs). 

Currently, PHPs are exempt from Act 250 jurisdiction if 20% of the units meet definitions of affordable housing for 15 years which would have been changed to 80% for no less than 30 years, if ARPA money was to be used for the project. This was an unwelcome change by those that work in those projects who already have a great deal to navigate.

Governance: while the House sought to overhaul governance, the Senate sought to study it.

Other items: the bill creates a study committee on the program’s jurisdiction over agricultural businesses and makes changes to hours of operations for deliveries and trucking in the wood products industry. 

On the whole, the bill does much more to bring more of the state into Act 250 jurisdiction than it does to make the process easier due to the road rule and forest fragmentation language. The changes to the neighborhood development areas are welcome, however, they are disproportionate in size and scope. It is highly unlikely that the Governor would see the good outweighing the bad if this bill were to make it to his desk.

Republished from March 25 Lake Champlain Chamber Advocacy newsletter. 

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2 replies »

  1. So let me see if I understand…Our efforts to evolve a community ethos for wise land use — that is, using our property with attention to impacts on our neighbors and the environment (land, forests, wildlife, water etc.) has been unsatisfactory. So we’ll need to forgo the slow inefficient proselytizing for these values and jump to community management. We’ll MAKE folks use their property according to an enlightened management plan from wiser elected, but mostly unelected, neighbors. We can make Vermonters behave themselves. After all we’re law abiding…cooperative…submissive; right? So we come up with Act 250. Right out of the box we find ourselves way outside the boundaries of any “keep it simple stupid” rule. It becomes so intrusive that it changes the culture. Toward protecting the environment? Maybe. But, more importantly, toward a creating a resistance underground. The standard becomes “How do we get around these barriers to actually use our property?” We create a bureaucratic tangle so intrusive that it undermines our law-abiding spirit. There must be some suspicion at this point that such “herding Vermonters” is…well, probably just another silly idea. Wouldn’t it be prudent to go back to trying to build citizen consensus on some of these issue rather than imposing enlightened wisdom from above? Legislators, please have enough self scrutiny to see when your hope of leading us deteriorates into ruling us. You’ve, no doubt notices, that being treaded-upon, usually doesn’t end well up here.

  2. It seems to me that the abuse in the act 250 process, has been in the appeals process.

    Folks abusing multiple appeals, from different angles, to achieve their business goals is the problem.

    I truly hope any reform to act 250 solves that problem.

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