“There is nothing permanent but change.” – Heraclitus

On January 11, 2019, the Commission on Act 250 issued its final report making its recommendations, along with draft legislation proposing those changes.

In 2017, the Vermont General Assembly created the Commission on Act 250: The Next 50 Years (the “Commission”). The purpose of the Commission was to review the goals of Act 250, to assess the effectiveness of Act 250 and its various criteria in achieving those goals since the law was enacted in 1970, to engage Vermonters with respect to these matters, and to make recommendations for potential changes to Act 250. On January 11, 2019, the Commission issued its final report making its recommendations (the “Report”), along with draft legislation proposing those changes.

Historically, the General Assembly has been reluctant to make wholesale changes to Act 250 and its criteria, preferring an occasional and incremental approach. The Commission’s work is a marked departure from this prior practice. The Report identifies 33 separate recommended changes to Act 250. These recommended changes range from insignificant to profound. The Report itself, which is 79 pages long and further includes 19 appendices, can be found here.

This brief update will not discuss each and every recommendation by the Commission. Instead, it will identify five of the more significant recommendations and their practical implications, which will drive what is anticipated to be an extensive inquiry over the course of the coming legislative biennium. Needless to say, there are several other recommendations which could potentially have significant impacts beyond the five matters discussed below.

Exempting Development Within Enhanced Designation Areas

The Commission recognized the importance of “an overall balancing of interests to support economic development in compact centers while promoting a rural countryside and protecting important natural resources.” Report at 34. To that end, the Commission has proposed to exempt commercial and industrial development within “enhanced designation areas.” These enhanced designation areas would include downtown development districts, village centers, new town centers and growth centers. A municipality would then have the option of seeking an enhanced designation by demonstrating local zoning and other regulations sufficiently address Act 250 criteria such that a separate Act 250 review is unnecessary.

As local communities have enacted comprehensive zoning bylaws and established sophisticated planning offices, parallel reviews under zoning and Act 250 have become duplicative efforts lacking in real substantive benefit. Given the policy goal of incentivizing “smart growth” in suitable areas of existing, planned development with existing infrastructure, the exemption of these project from the Act 250 process should encourage the very type of development “smart growth” advocates have desired.

Recognizing Climate Change Within The Criteria

The Commission identified a number of existing Act 250 criteria that relate in some way to the overarching concerns respecting climate change, but which do not currently address the matter directly. The Commission recommends changes including the breaking of Criterion 1 into two criteria: Criterion 1 relating to air pollution and Criterion 2 regarding water pollution. Criteria 3 and 4 regarding water supplies would then be consolidated. A new Criterion 1(B) would expressly address greenhouse gas (“GHG”) emissions by requiring mitigation when a project would increase those emissions. Criterion 2(F) regarding floodways would be expanded to address flood hazard areas and river corridors. Criterion 9(F) regarding energy conservation would be expanded to expressly encompass energy efficiency.

The aspect of these changes with the greatest potential impact relates to the mitigation required for any increase of GHG emissions due to project operation’s or related vehicular traffic. The proposed legislation contemplates a hierarchy of approaches: First, the project should attempt to avoid GHG emissions. If it is not “feasible” to avoid such emissions, then they should be “minimized.” If it is not “feasible” to avoid or minimize them, then the draft legislation contemplates the promulgation of an administrative rule setting forth required mitigation efforts. The meaning of “feasible” and “minimize” will need to be explored, and the terms of any rules regarding mitigation will be extraordinarily important.

Addressing Forest and Habitat Fragmentation

In 2017, the House passed a bill adding Criteria 8(B) and 8(C) relating to forest blocks and connecting habitat, respectively. This bill was passed in response to the reduction of forestland in Vermont generally, and the increased subdivision of land. In the Report, the Commission noted that forest fragmentation “isolates forest patches and prevents the movement of plants and animals.” Report at 25. In turn, poor forest health “hurts Vermont’s economic interests, including particularly its forest products and tourism industries.” Report at 26.

In response, the Commission has recommended the passage of the new Criteria 8(B) and 8(C) enacted by the House in 2017. These criteria would require avoidance or mitigation of forest block and connecting habitat fragmentation. As is frequently the case, the definition of terms would prove crucially important. The terms “connecting habitat,” “forest block,” “fragmentation,” and “habitat” are each the subject of new definitions in the Commission’s proposed legislation. Of particular note, one option for defining “forest block” would tie them directly to mapping performed by ANR. Furthermore, as would be the case under the new Criterion 1(B) relating to GHG emissions, the Commission’s proposed legislation contemplates the promulgation of rules regarding mitigation of fragmentation, including monetary payments. These new criteria regarding forest block and habitat fragmentation would have far-reaching implications as they open up an entirely new area of inquiry as part of the Act 250 process.

Jurisdictional Changes Regarding Farming, Logging and Interstate Interchanges

As part of its charge, the Commission was also asked to review various jurisdictional thresholds to determine whether any revisions are warranted. As a result of its review, the Commission concluded that a variety of jurisdictional tests should be modified.

  • The elevation threshold for development being generally subject to Act 250 review is proposed to be reduced from 2,500 feet to 2,000 feet.
  • The farming and logging exemption would extend up to the lower 2,000-foot elevation, and not to the current 2,500-foot threshold.
  • Development outside existing settlements within 3,000 feet of interstate interchange areas would be subject to Act 250.

Each of these proposed jurisdictional changes would expand the footprint of Act 250 regulation across Vermont.

Transforming The Appeal Process: Past Is Prologue

Finally, the Commission evaluated the current Act 250 appeal process. Presently, all environmental and land use permit appeals proceed through the Environmental Division of the Vermont Superior Court. This consolidation of permit appeals was enacted by the General Assembly in the mid-2000s in the interest of streamlining and harmonizing separate appeal processes that existed previously. This reform also allowed the newly-constituted Natural Resources Board (the “NRB”) to interface more directly with District Environmental Commissions since it was no longer the objective quasi-judicial body charged with hearing appeals.

Prior to these reforms, Act 250 appeals proceeded to a lay Environmental Board from the District Environmental Commissions, with ANR and zoning appeals being handled by the then-Environmental Court. Thus, large projects requiring zoning, Act 250 and ANR permits formerly faced appeals on dual tracks to the Environmental Board and the Environmental Court, creating the prospect of inconsistent determinations before the two appellate bodies.

In the Report, the Commission has recommended a return to dual-track appeals. The proposed legislation would change the NRB to the Environmental Review Board. This new Board would retain the NRB’s current administrative and rulemaking powers, but would also adjudicate appeals regarding all Act 250 and ANR permits. Zoning appeals and enforcement actions would remain with the Environmental Division. The proposed return to dual-track appeals will assuredly be a matter of some significant debate.

In addition, the Commission has recommended that the party appealing a permit determination would always have the burden of persuasion on appeal. Currently, the applicant has the burden of persuasion on appeal as it would have before the District Commission without regard for whether it prevailed on the issue in the first instance.

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The Commission was asked to engage in a comprehensive review of all aspects of Act 250’s processes, criteria and policies. In accordance with its charge, the Commission has done so. The proposed changes go beyond those highlighted above. This will lead to a vigorous debate before the General Assembly this coming biennium, a debate which should be of great interest to all Vermonters given the extraordinary breadth and significance of the potential changes.