There is a fundamental problem with the way that wind farm development is occurring in our mountains, resulting from a lack of planning which would provide citizens and regulators with a better opportunity to know where these projects may be sited in the future.

On other issues Vermont has a long history of protection of its ridgelines through a public process that allows for more thoughtful and orderly consideration. One example is the report of the Gibb Commission which led to the adoption of Act 250 in 1970. All development over 2,500 feet was subjected to Act 250 review regardless of its size. Criterion 8 of that act protects aesthetic and scenic values. However, public utility development is not subject to these rules.

When major issues of ridgeline development have arisen in the past, the voice of the citizens has been powerful, and Vermont stands out as a place where public opinion and participation in these major issues is possible. An example is the Green Mountain Parkway, proposed along the spine of the Green Mountains. In this case, the legislature concluded that this dramatic change required a vote of the people, and it was promptly rejected by the voters. In its place we have the Green Mountain Club’s “footpath in the wilderness” – the Long Trail.

With this history in mind, I think we could do a much better job in planning for the development of wind projects, keeping in mind our proud history of recognizing that our mountains, ridgelines and hill tops have great value and importance in making Vermont such a special place, and where we have managed to avoid some of the type of development which would seriously impact our values as well as our tourist-based economy.

Under the present situation, there is no advance opportunity to understand where the next proposal will occur, and to what extent these projects will cumulatively compromise the beauty of our mountains. Grandpa’s Knob and the recent approval by the Green Mountain National Forest are two of the latest examples of projects where we are confronted with dramatic changes to our ridgelines in a less than transparent manner. With the governor’s recently published energy policy, and the potential opening of all public land to consideration, it is clear that such development could occur anywhere.

Therefore, I believe that the Agency of Natural Resources, consulting with the Public Service Board, should undertake a planning process to determine the ultimate scope of wind power development, the appropriate criteria, and where the most suitable sites will be. It would define the extent to which Vermont’s ridgelines would be impacted, and would help to guide the location of individual projects. Citizen involvement needs to be an important part of this planning process. A proactive, rather than reactive, approach is badly needed.

Wind power is important – but until we develop clearer public policy, transparency in location, and a process for citizen involvement, then the landscape in Vermont may be compromised without adequate review.

VTDigger

It happened again.

With increasing frequency, national articles about Vermont are published within weeks of each other. One will attest to the resiliency of Vermont’s economy and the other will acknowledge our great quality of life.

On Dec. 6, the United Health Foundation ranked Vermont as the healthiest state in the union for the third year in a row. We ranked first in 15 of 23 measures of public health (http://www.americashealthrankings.org/Rankings). One week later, on the 13th, Bullhorn, a national recruiting software company, issued its annual report on new job openings. Vermont leads the nation in creating jobs with a 62 percent increase over last year (http://www.bullhorn.com/news-event/job-opportunity-index). (Coincidently, Alabama, which United Health Foundation ranked the 46th healthiest state, was the only state in the Bullhorn ranking to post a negative job openings number.)

Earlier this year, CNN Money ranked Vermont as the fifth smartest state in the country while the Wall Street Journal reported that Vermont might be the best place to secure an SBA loan due to the state’s lowest-in-the-nation default rate.

We are regularly ranked the greenest state, the best state in which to raise a family and the safest state. And, according to the Bureau of Economic Analysis, Vermont ranked 10th among the 50 states in real GDP growth in 2010 and the Federal Reserve reports that over the previous eight years, Vermont’s GDP grew at 2.5 percent, outpacing the federal growth rate of 2.1 percent.

By conventional measures, Vermont is not “friendly” to business. Our high taxes and tough regulations are supposed to make us unattractive to business investment. But the data in many recent articles and reports indicate that our quality of life is a real engine of economic development, as first evidenced in 1956 when Thomas Watson Jr. decided to build an IBM plant close to the ski areas he so enjoyed.

But quality of life is an elusive concept and unless we can monetize it, it won’t factor into our economic strategies and formulae. It’s common to believe the Vermont we all love is built upon some old-fashioned values such as a sense of community, an aversion to debt and a strong work ethic. But Vermont is also the result of bold financial choices that can surely be monetized. Here are some examples:

•Vermont’s decision to ban billboards in 1968 had measurable economic impact. Ad agencies lost revenues. Businesses lost customer traffic. Farmers lost lease payments for billboards placed on their land. Despite this financial impact, Vermont invested in its quality of life. As the U.S. Supreme Court ruled (Berman v Parker, 1954), “It is within the power of the legislature to determine that the community should be beautiful as well as healthy.”

•Two years later, Vermont adopted Act 250 to ensure that real estate development does not compromise state assets such as natural resources, civic capacity, public infrastructure and scenic beauty. The law’s provisions have withstood four decades of complaints that it discourages businesses from moving to or remaining in Vermont and has scared away millions of dollars of investment capital. The cost appears to have the support of Vermonters as the law has remained essentially unchanged for 40 years.

•Vermont passed the first “bottle bill” in 1953 banning non-refillable bottles. It was overturned in 1957 due to intense lobbying by the beer industry. But in 1972 we became the second state to regulate bottle redemption to reduce litter and promote recycling. A 2007 report by DSM Environmental, reported net costs of the bottle bill to distributors and bottlers in excess of $5 million.

•The current commitment to health care reform is a long-term investment in the well-being of all Vermonters. The costs and savings are still to be distributed but universal access to health care will be a major boost to Vermont’s quality of life.

By these and many other initiatives, Vermont has made real investments in its quality of life. Now the relative strength and resiliency of our economy suggest that those investments are paying handsome dividends.

Maybe the old-fashioned value that most effectively nourishes the Vermont economy is the realization that there’s more to life than money.

VTDigger

Mormon Temple, Salt Lake City

Editor’s note: This piece by Jeffrey Thomson first appeared on the SCOV Law Blog.

In re Times and Seasons, 2011 VT 76

The sensible side of me takes great consolation in Vermont’s Act 250 and its role as a barrier (often the only barrier) to some of the more baroque development proposals in many of Vermont’s zoning-free towns. Yet, the part of me that relishes the “schemes of folly” has always wanted to go and see the Joseph Smith Theme Park & Gift Shop! At least, the gift shop portion that is—welcoming me to the commercially friendly park of Latter Day Saints!

If you are still confused by my ironic enthusiasm, consider this: the Joseph Smith Memorial—the birth place of the founder of Mormonism—is located on a little traveled and less improved road on the far-side of a remote mountain at the outskirts of South Royalton. Marked only by few innocuous direction signs. The Memorial is a tasteful, hidden treasure situated on a hilltop that inspires awe, wonder, and bit of reverence that no doubt inspired the young Smith during his formative years. If sticking an enormous South-of-the-Border on this pristine site still sounds like a perfectly sensible idea to you, then I apologize for my sarcasm.

The Time and Seasons deli and gift shop is an idea that has been around since my Vermont Law School days. Having lived in Royalton and hiked the sublime lands around the Joseph Smith Memorial, I believe that if Act 250 is designed to prevent foolish land use ideas, then this is perfect test case. This is why during my time at VLS, my friends and I joked about the “Joseph Smith Memorial Theme Park” venture as the embodiment of what was wrong with unregulated development.

In all fairness, though, Time and Seasons, LLC is a serious venture that has been fighting hard to get its Act 250 permit despite denials from the District Commission, the Environmental Board, the Natural Resources Board, and Environmental Court.

The main sticking point in litigation for the Time and Seasons’ plan has been its reduction of “primary agricultural soils.” At the time of its initial Act 250 application, criterion 9(B) of the act required projects to “not significantly reduce the agricultural potential of the primary agricultural soils.” In the alternative, if a significant reduction existed, then Applicant needed to prove through four sub-criteria that this use was essentially unavoidable, the only reasonable use for the land, a minimum impact, and would not impact adjoining agriculture or forest lands. The old Environmental Board found that there were 2.8 acres of primary agricultural soils on the 7.3-acre project site and that the project would significantly reduce the agricultural potential of 1.9 acres of these primary agricultural soils. Finding this loss of two-thirds of the primary agricultural soils on the site to be a significant reduction under the statute, the Board concluded that applicant failed to carry its burden to comply with Act 250.

Applicants originally appealed this decision to the SCOV in 2008. The SCOV affirmed the Board’s determination and concluded that the project did not meet the criteria for the reduction of primary agricultural soils.

However, during the course of that litigation, a statutory amendment to Act 250 changed the definition of “primary agricultural soils” in such a way that could arguably be beneficial to the Time and Seasons’ application. In 2008, Time and Seasons filed a reconsideration request with the District Commission pursuant to 10 V.S.A. § 6087(c), which allows an applicant to apply for reconsideration within six months of a final Act 250 permit application denial, if the applicant certifies that the deficiencies causing the denial have been corrected. The District Commission applied the amended definition and found that applicant’s project still failed to satisfy criterion 9(B) and denied the application. On appeal to the Environmental Court, the court found that the applicant could not rely on the amended definition of “primary agriculture soils,” and again denied the application.

In today’s case, the SCOV tackles the issue of whether or not Time and Seasons could rely on the amended definition of “primary agricultural soils” on appeal. The issue takes us into an interesting area of law, the vested rights doctrine, in which the SCOV has adopted the minority view. In Vermont, an applicant gains a vested right in the governing laws and regulations in existence when a complete permit application is filed. Therefore, Time and Seasons has a vested right to the laws in effect at the time of its original Act 250 permit application for the deli and gift shop project.

The SCOV explains that it adopted its interpretation on which regulation applies—which most states do not apply—because it was easier to administer, was likely to avoid protracted litigation and maneuvering, and gave the parties a degree of certainty.

The SCOV finds that the submission of an Act 250 reconsideration application is not a “separate vesting event,” but simply a continuation of the initial application process. The SCOV sheds further light of the vesting rights doctrine, stating that “an applicant on reconsideration may not simultaneously take advantage of the laws in effect at the time of the initial application and those in effect at the time of the reconsideration application—it is not a two-way street.” To allow Applicant or anyone else to take advantage of new regulations by filing a motion for reconsideration would violate the spirit and principles behind these purposes.

In the end, Time and Seasons could not even prove that a favorable change in the law brought their plan into compliance with Act 250. They still had the burden of showing that changes to the project itself corrected the deficiencies within the initial plan. However, this does not prevent them from submitting a new Act 250 application and relying on the new statutory language. I have a feeling that we haven’t heard the last from The Joseph Smith Memorial Theme Park! The line for tickets starts here.

VTDigger

Over the past four decades, Vermont has enacted a patchwork of planning and regulatory systems to guide land development while protecting our natural resources. And although the state’s planning and zoning laws, water quality standards, Act 250 and other regulations might be protective, effective and user-friendly in and of themselves, they often work poorly together, costing Vermonters and state government more than we can afford.

There are many of us in Vermont who think it’s time to make some structural adjustments to our permitting process.

A new entity — the Department of Environmental Quality — could be established to hear appeals from Agency of Natural Resources permits and Act 250 land-use and local-zoning decisions.”

It’s been 40 years since Act 250 was passed, and in the years since, many state and federal laws have been put into place. Yet we have never taken the time to step back from these regulatory processes to assess their redundancies and inefficiencies, nor their cumulative effectiveness in protecting natural resources.

As a result, Vermont does not have a “permit process” per se. We have many individual permit processes — and therein lies the problem.

Our permit systems have become more redundant and litigious, requiring legal assistance, stamina and capital. This shuts many Vermonters out of the process. There are inefficiencies, issues of fairness and access, and unnecessary time and expense to all participants, including applicants.

The 1970s and the 1980s were the years when most of our environmental regulations and planning laws were passed. This era of intense legislative action was a response to rampant growth and pollution. Climate change and energy security were hardly on the radar screen and were barely part of our vocabulary until the 1990s.

Today we have a very different set of economic and environmental concerns that arise from the effects of climate change and the transition into a new energy future. Energy conservation and efficiency, increased transportation options for Vermonters, affordable housing, smarter land-use patterns that concentrate growth in town centers and leave working landscapes for the production of food and fuel — all could help Vermont flourish in the 21st century.

There is a broad cross-section of lawmakers, interested groups and individuals who have worked during the past year to build consensus on an approach to aligning the various permitting processes that is comprehensive and addresses a changing Vermont. Last year this idea was drafted into two bills sponsored by the chairs of the House Fish, Wildlife and Water Resources and House and Senate Natural Resources and Energy committees, but failed to progress for lack of time. However, earlier this month, the Senate began discussing a similar version of that legislation.

The basic proposal calls for a consolidation of three state agencies: the Vermont Environmental Court, the Vermont Natural Resources Board and the permitting functions of the Department of Environmental Conservation at the Agency of Natural Resources. This new entity would be called the Department of Environmental Quality (DEQ). A three- to five-member professional board appointed through a judicial nominating process would be established to hear appeals from Agency of Natural Resources permits and Act 250 land-use and local-zoning decisions.

The proposal also would begin to integrate the myriad local zoning standards and processes with state regulations through better growth-center planning and modifications to the criteria of Act 250 to address today’s land-use and environmental concerns.

We have grave needs resulting from the threats of climate change and energy insecurity, economic contraction and a shortage of affordable housing. Yet these demands bring with them unique opportunities to rethink Vermont’s permitting infrastructure and criteria.

This proposal would save Vermonters money and better protect our invaluable natural resources. It would create incentives to develop and redevelop our town centers, streamline cumbersome elements of permitting and result in better outcomes for the economy, the environment and all Vermonters.

VTDigger

CONTACT: David Mace (802) 828-5229

February 24, 2010

Revised Rule Clarifies Protection Of Archeological Sites and Historic Resources

MONTPELIER, Vt. – The state has officially filed a proposed revised rule for protecting archeological and historical sites during development, beginning the formal process of review.

Officials with the Agency of Commerce and Community Development’s Division for Historic Preservation said the changes reflected the feedback received during five public meetings this summer around the state.

“The public meetings to get informal feed-back on the proposed changes were very well attended. We heard from a broad spectrum of the archeology and applicant communities about the proposed rule changes,” said Giovanna Peebles, the State Historic Preservation Officer and head of the Division for Historic Preservation. “Based on that, we have further revised our original suggested changes to clarify all aspects of the original rule, including the roles of the participants in the Act 250 process.”

Under Act 250, the state’s environmental protection and development review law, the Division for Historic Preservation makes recommendations to the district environmental commissions on whether a proposed development would impact “historic sites,” including archeological sites.

The proposed rule revisions clarify that District Commissions, not the Division, have the final decision-making authority about such questions as whether to require additional field studies, and whether a site is historically significant enough to warrant protecting it.

“We don’t issue permits,” Peebles said. “The Division provides testimony to the District Commission about historic and archeological resources, on whether or not a project will adversely affect an ‘historic site,’ and on how much field study should be done to determine whether an area is historically significant and should be protected if a permit is issued. The District Commission makes those decisions.”

One concern raised by the archeology community was that undiscovered “potential” sites must continue to be considered and protected where possible. Peebles, who is also the State Archeologist, says that the revised rule clearly provides for this within the ability of existing state law.

Peebles said that the revised rules clarify that the definition of “historic site” includes archeological sites that have not yet been discovered, and encourages applicants to work with the Division as early as possible in the planning process to identify and protect sites, even well before an Act 250 application is submitted.

“Based on several steps during project review, Division staff can identify an area as historically significant and recommend to the District Commission that an archeological investigation be conducted by the applicant to ensure no undue adverse effect to significant archeological sites,” Peebles said. “The applicant still has the opportunity to present evidence to the commission disputing that.”

The proposed revised rule also sets additional time limits for reviews to make the process more predictable for permit applicants, with exceptions for winter months when the ground may be frozen and archeological field assessments impossible.

After review by the Interagency Committee on Administrative Rules, the proposed rule revisions will be submitted to the Secretary of State’s Office. The formal rules adoption process includes a public hearing.

After that the rule must be reviewed by the joint Legislative Committee on Administrative Rules before it can be put in place.

Additional details and the draft guidelines are available at www.HistoricVermont.org

VTDigger

It’s not clear yet what will distinguish any one candidate from another in the 2010 governor’s race, given the general agreement on issues among the pack of five Democrats so far and the extremely cordial kickoff debate held by the Vermont League of Conservation Voters in Burlington last night. Lieutenant governor and gubernatorial candidate Brian Dubie didn’t attend the event.

Two and a half weeks ago, Vtdigger.org reported that each of the five Democrats had made a commitment to close Vermont Yankee. Last night, Secretary of State Deb Markowitz, Sen. Susan Bartlett, Sen. Doug Racine, Senate President Peter Shumlin and former Sen. Matt Dunne reiterated the reasons why they believe the nuclear power plant should be shut down in 2012. They also agreed that the Act 250 permitting system has flaws, but vowed to keep the goals of the law intact; they vehemently supported the state’s affordable housing and conservation programs; and they each voiced concern about wastewater and stormwater pollution.

Should Vermont Yankee be shut down in 2012? The candidates say yes

The sound bites

Racine: “Entergy has given me no confidence that they are operating Yankee safely and that’s a bottom line issue for me.”

Shumlin: “How many people have been told that we need this cheap power. If it’s so cheap, why won’t they tell us what the price will be?”

Dunne: “Every day goes by that we are not clear about what we’re going to do about Vermont Yankee is simply irresponsible.”

Markowitz: “Vermont Yankee is not part of our energy future. Our future rests with local renewable energy and efficiency.”

Bartlett: “Our future is in renewable energy. Every year Vermonters send out of state $1 billion. That’s basically the size of our General Fund budget, just think if we kept half that — $500 million a year in state.”

Answers to questions about Act 250, the Vermont Housing and Conservation Trust Board and water pollution follow.

Does Act 250 need to be changed?

The sound bites

Dunne: “We need to make sure that important laws like Act 250 are not the scapegoats for the fact that we have not had an economic development plan in this state for the last eight years. That doesn’t mean we can’t make changes to Act 250 to make it better.” Dunne is calling for a more predictable and transparent permitting process. He would make redevelopment of brownfields a priority.

Markowitz: “What I’ve heard is that it isn’t the standards aren’t the problem with Act 250, it’s really the process. Folks want a thumbs up or thumbs down. We have to look at the bureaucracy of the Agency of Natural Resources.” Markowitz says ANR has “lost its way.”

Racine: “Act 250 works. Are there shortcomings? Yes. Can we make it better? Yes. But to me it’s about management, it’s about having a governor who’s committed to a clean environment and who is committed to making the system work and who is committed to not letting flaws in the system become excuses to diminish our environmental protections.”

Bartlett: “What’s wrong with the permit process? It’s too long, it’s too difficult for citizens to be involved. The fundamental flaw in attempts at permit reform has been the failure to integrate the 40-50 permits ANR issues. Act 250 needs to be simple, fast and affordable.”

Shumlin: “Act 250 has served us well, and the reason we don’t have the problems of Las Vegas and Miami and the rest is because we don’t speculate here. We have a process that allows us to plan.” The Douglas administration, George Crombie and the rest have almost single-handedly destroyed environmental protection in this state.”

Would you continue to fund the Vermont Housing and Conservation Board?

The sound bites

Markowitz: “These are investments that pay back in our communities. We can think of it as our permanent stimulus fund.”

Bartlett: “It’s great economic development.” Bartlett says she would use bonded dollars to fund VHCB investments.

Racine: “We would have to go to the Capital Bill to fund it. Businesses make investments even when times are tough. It’s only at their peril that they ignore making investments. And the state is no different.”

Shumlin: “The Douglas administration will propose not to do conservation in tough economic times.” Shumlin says land conservation is even more important than ever with the onset of global warming.

Dunne: “It’s important to stay focused on this longterm goal.” Dunne’s father helped to found the Vermont Land Trust.

How would you protect Vermont’s waterways from stormwater pollution?

The sound bites

Bartlett: “We have failed to implement this (stormwater) policy for at least the last 10 years. … There are inexpensive easy ways to mitigate stormwater.”

Racine: “I would start by enforcing our existing laws. I would address suburban sprawl and work with communities that are addressing make sure taking maximum advantage of visionary laws and programs with downtowns and growth centers as a way of targeting development.”

Dunne: “Developers who are trying to cutting corners and adding to pollution (should) pay for it.”

Markowitz: “One of the major contributors to pollution is government.”

Shumlin: “The tension between dairy farmers and businesses has to end. Farmers don’t want to be polluting the resources precious to Vermont, so the question is, how do we give them the tools to make sure they’re not polluting the streams.”

The candidate’s pitches

The sound bites

Markowitz: We’ve been offered a false choice by Jim Douglas and the Republicans that every time we choose the environment, we’re doing it at the expense of the economy.

Bartlett: “This election is going to be about government learning how to restructure itself, how we offer as government the services people need in a better, faster, more efficient manner.”

Racine: “Climate change is the biggest threat to the human race and our planet since the dawn of the nuclear age. Vermont can take the lead, has taken the lead and should continue to lead.”

Shumlin: “As we as a society get off our addiction to oil and move to renewable energy technology, there’s going to be a huge economic boom created. This transformation is going to affect everything that we do, how we move around, how we produce our food, how we build our homes.”

Dunne: “In order to turn this economic corner and to be a leader in the country in terms of green jobs, we must be a leader in the environmental movement.”

VTDigger