Editor’s note: This commentary is by Don Keelan, a certified public accountant and resident of Arlington. The piece first appeared in the Bennington Banner.
[T]he campaign for Vermont state offices has finally come to completion. A common theme among the candidates was to improve the Vermont economy and bring well-paying jobs into the state along with retaining our 18- to 34-year-olds. A recent ruling by the Vermont Supreme Court has nullified the candidates’ intentions.
On Oct. 21, the Vermont Supreme Court overturned a ruling by the Vermont Environmental Court in favor of the developer, finding that a mixed use, multi-million dollar development near the junction of Route 4 and I-89 did not comply with the area’s regional planning goals.
According to the Oct. 22 article in the Rutland Herald, by Matt Hongoltz-Hetling, “The ruling [by the Supreme Court], which concluded that the project on old farmland was in conflict with a 2007 regional plan created by the Two Rivers Ottauquechee Regional Commission, strengthens the ability of the regional commissions across the state to regulate the development of Vermont’s green spaces and curb sprawl.”
We all should take a hard look at this ruling and ask: Why did it take nearly 10 years of meetings and appeals to get to this point? Also, and as important, why did the developer have to spend $4 million, according to the Rutland Herald article, to find out that the project is rejected?
Act 250 for the most part is fair and impartial. What is missing from the Vermont experience is any degree of predictability that a developer needs in order to make the huge investment in time and capital to move forward.
A few years ago, in southwestern Vermont, the local hospital had a similar and costly experience. The hospital, after years of planning and an investment of over $1 million, was turned down in its attempt to build an assisted living facility on 50 acres of abandoned farmland. The regional Act 250 Commission ruled that the land was “prime agricultural land.”
I had spent many years as a real estate developer appearing before planning and zoning boards and environmental authorities, in seven states, including Vermont. And only in Vermont does the absence of certainty prevail within land development process. Added to this is the ever-present threat to a land use approval application that can come from Vermont’s legions of nonprofit environmental organizations.
Aside from the five regional planning commissions that were against the project, the nonprofits are well funded, experts at lobbying, and have a “standing army” of attorneys with vast experience in land development litigation. It would be foolish for a developer to challenge such a force.
And then of course there is the potential legal action of an abutting neighbor. For a paltry $15 filing fee, a disgruntled neighbor can argue his/her case before the Vermont Supreme Court, with not much to lose.
I have often heard that Vermont has some of the most stringent environmental laws of any of the states. From my experience that is not the case. Act 250 for the most part is fair and impartial. What is missing from the Vermont experience is any degree of predictability that a developer needs in order to make the huge investment in time and capital to move forward.
I am sure that in Scott Milne’s case (he is the applicant in the Hartford project) or the Southwestern Vermont Medical Center’s Breckenridge Assisted Living project, neither would have invested millions of dollars, knowing that the ultimate outcome would be disapproval.
It is worth noting that some 20 years ago, when the Orvis and the Mack Molding companies were planning to build their corporate headquarters at or near the junction of Vermont’s Route 7 and 313, the issue of sprawl came close to blocking both projects. Two decades later, not one new project has been built near these beautiful facilities.
The Vermont Supreme Court decision has dire implications for in-state developers, but also for those companies who might be looking to come to Vermont – why put so much at risk when certainty is so elusive?
