Act 250 Rethinking and Reform

Author: Greg Duggan

One of Vermont's most controversial laws may finally change both for the better and for the worse. Vermont's Land Use and Development Law, known as Act 250, stipulates that developers must follow certain rules when they wish to build new sites in Vermont, from subdivisions to roads to shopping areas. In the near future, parts of this law governing the application and appeals process may change.

The Vermont Environmental Board held two recent deliberations before voting on Oct. 22 to approve several changes in Act 250. The Board has sent the proposed changes to the State Legislative Committee on Administrative Rules, made up of four members from both the House of Representatives and the Senate, who will review, comment on and then either approve or deny the proposed changes.

The Vermont Legislature passed Act 250 in 1970 with the purpose of, as described in the law's brochure, achieving "a balance between economic development and the legitimate interests of citizens, municipalities and state agencies in protecting the environment." Specifically, the Act applies to certain types of development and subdivision plans such as industrial, commercial or government construction on more than 10 acres, the construction of 10 or more housing units, road construction, development executed over 2,500 feet in elevation, and the drilling of oil and gas wells.

To receive permission to build in any of these circumstances, developers must apply to one of nine District Environmental Commissions around the state. Environmental Commissions base their decisions on 10 criteria that deal with the developmental impact on air and water quality, water supplies, traffic, education and municipal services and historic and natural resources. The Environmental Commissions approve most plans, though sometimes after adding conditions which ensure that developers observe the criteria.

Should any appeals be made to the Environmental Commissions' decisions, they then go to the Vermont Environmental Board, also formed under Act 250. Consisting of eight members, plus a chair, the Board oversees Act 250 by ruling on any appeals and creating rules to interpret and administer the Act. Recently, the Board voted 6-1 in favor of the proposed rule changes, with one member abstaining from the vote.

Through the proposed changes, the Environmental Board hopes to streamline the process of granting building permits to developers. Several of the changes have been more controversial than others, and Patricia Moulton Powden, chair of the Board, said, "The most controversial is the proposal to change the party status rules," which limits the type of parties that have the right to file an appeal. If the rule changes are passed by the legislature, materially assisting parties - an individual or group that has information such as commentary or studies and can materially assist the commission in its decision making - will lose their right to appeal, limiting that privilege to individuals or groups directly affected by the development.

Other changes include reducing the time frame, from 30 days to 15, in which a party will be able to file a motion to reconsider a decision. Further simplifying the appeals process, the Board has the ability to narrow the issues on appeal or even dismiss an appeal if no disputes about the facts of the case exist. The final major proposed change gives greater privileges to applicants, allowing them the right to request a pre-hearing conference. Currently, only a Commission or the Board can ask for such a conference.

The Board made the decision to vote for the changes this year after listening to feedback from Vermont citizens. When the changes were proposed a year ago, people from around the state largely objected. After some changes in wording and lots of discussion, popular opinion towards the rule changes became much more balanced, and the Board voted to approve the changes for legislative consideration. The legislative committee is expected to review and comment on the rules by November, and have a final decision by early December. "I rarely speculate on how the legislature will go, but we're obviously hopeful they will approve," said Moulton Powden.