By John McClaughry
In January 2019 the commission to review and update Act 250 presented a well-written report. Its recommendations are now the subject of 94-page bill (H.926) to dramatically reshape the state’s land use and development act.
On the plus side, in light of its 50 years in force, Act 250 was certainly due, or overdue, for thorough reconsideration. This is especially true since the bill that became Act 250 was thrown together over one desperate weekend to “put the brakes on land development.” I know, because I was an active participant in that process in the House and voted for it.
On the minus side, a brief trip through the report and bill show that the six legislators on the commission were pretty clearly chosen to bestow every imaginable policy victory upon the Vermont Natural Resources Council, the organization that has battled for stronger regulation over Vermonters’ use of land ever since the act passed.
Back then, to its acute dismay, VNRC lost its battle to enshrine “social property” in place of “freehold property,” and it gnashed its organizational teeth as the third and feeblest State Land Use Plan finally perished in the Senate in 1976. But now, with a liberal legislature eager to reward its every desire, VNRC’s fortunes have revived.
Much of the “reform” bill involves complicated legal and procedural questions, some with good arguments on both sides. Here are just eight of its key features.
First, this is now a bill to protect us from the Menace of Climate Change. It recites the previously enacted (2013) climate change mantra and of course declares CO2 emissions to be not plant food, but climate-wrecking “air pollution.” An applicant must show that his or her development would not release an “undue” amount of it, which in the view of certain regulators could often mean “none.” The report even offers the specter of desperate “climate refugees” driven to Vermont “as Northeast coastal populations are increasingly impacted by rising sea levels.”
Second, the regulatory power will now be lodged in a three-member “Natural Resources Board,” appointed like superior judges to serve like PUC members. The Super Board members must have expertise in “environmental science, natural resources law and policy, land use planning, community planning, environmental justice, or racial equity” and must also reflect “the racial, ethnic, gender, and geographical diversity of the State.” (The House Ways and Means Committee voted on Feb. 21 to delete the “Super Board.” Its fate is now uncertain.) The nine district environmental commissions will survive, barely, but will act only on minor applications and supervise compliance with permits.
Third, the VNRC gets its yearned-for regulation to protect “forest blocks” from “fragmentation.” This means no more development in rural areas where wandering wildlife might be deterred from crossing from one forest block to another. One may be forgiven for suspecting that this is motivated more by the urge to keep people’s homes from despoiling the arcadian landscape than solicitude for the wildlife.
Fourth, and similarly, the costly burden of struggling through the permit process will be eased in designated downtown centers where future residents are expected to cluster.
Fifth, the range of regulatory interest now extends to the development’s surrounding the “ecosystem.” Since everything in an ecosystem is linked to everything else, the applicant’s burden of proving no undue adverse impact will become ever more demanding.
Sixth, Act 250 now gives regulatory scrutiny to development that might adversely impact nearby public investment, like highways, airports and sewage plants. That’s fair enough, but now public “investment” will include private rural property on which the Housing and Conservation Board has a no-development easement.
Seventh, after a last minute shakedown the sponsors of the bill agreed to require permit applicants to guarantee “environmental justice.” That is defined to mean “the right to equal environmental protection under the law and the right to live, work and play in communities that are safe, healthy and free of life threatening conditions.” The bill does not deal with whether the groups who believe they might be denied this newly declared right to “environmental justice” can sue to block a development that doesn’t give them enough of it.
Finally, the bill fails to put an end to regulation by planning commission. At least three times the Supreme Court has curbed local enthusiasm for regulating developments by vague goals of a town plan. Zoning, adopted by a vote of the town, is regulatory law. Town plans are not regulatory, but aspirational. The bill gives the Super Board the power to control local and regional plans and, unconscionably, keep on using them to regulate.
In sum, the “New Act 250” is a concerted effort to make Vermont into the Perfect Little Climate-Conscious State, erecting ever greater barriers to development, and ruled from Montpelier, from whence the Super Board can best perceive the greater good.
John McClaughry is vice president of the Ethan Allen Institute.