Editor’s note: This commentary is by Ed Stanak, who worked as an Act 250 district coordinator for 32 years for Washington and Lamoille counties and a portion of Orange County.
Back in 2017 the Vermont Legislature created a study commission to obtain public input regarding how Act 250 could be upgraded in order to address 21st century challenges. The commission issued a report with sound recommendations in December 2018. The race was on to produce a bill as a “birthday present” since Act 250’s 50th anniversary is this year. The Vermont House then proceeded to pass a regressive bill in February 2020 ignoring most of the commission recommendations.
The Senate is now poised to act on its own wrong-headed version of a bill during the next few weeks. The remaining finite natural resources (most of which are located above 1,500 feet in elevation) in the Green Mountains – the headwaters of streams and rivers; aquifer recharge areas; critical wildlife habitats and travel corridors; and intact forests – face imminent threats, including eventual growth impacts from foreseeable climate change refugee migration into the state. The response of the Vermont Legislature, controlled by Democrats and Progressives, is a decreased role for Act 250 and increased deregulation.
What are the main components of the pending Act 250 bill (H.926) in the Senate? Here’s a brief summary.
The bill increases the types of development that will be exempt from Act 250 reviews. These exemptions add to the 25 or so exemptions carved out by the Legislature over the last 30 years. The idea is that town zoning boards alone can adequately evaluate land use changes and impacts on natural resources. Yet, despite the countless studies of the administration of Act 250, the Legislature has never undertaken an objective study of the effectiveness of local control. No one really knows. But many have experienced firsthand the shortcomings, including the cronyism, of local control. Zoning boards have avoided or downplayed controversial issues often commenting that “Act 250 will take care of that.”
The Senate Natural Resources Committee believes it is important to include an unprecedented provision in the bill allowing developers to seek “release” from existing Act 250 permits, some of which have been in place for decades. Many of these permits contain conditions resulting from intense efforts by citizen activist groups. If the Senate authorizes such “releases,” the result will likely be a wave of litigation by developers that Vermonters will be unable to counter. No one can honestly expect that state agencies will be capable of responding to petitions for “release.” The end result will be the slow and steady unraveling of District Commission decisions that many thought had resolved important growth and ecosystem issues with finality.
The House and the Senate Natural Resources committees claim that the bill will establish significant measures to minimize or mitigate adverse effects from the fragmentation of forest ecosystems. The bill includes language for the review of projects that may affect forests but those reviews will only apply to projects that actually come under Act 250 jurisdiction. Less than 30% of all development taking place in Vermont any longer comes under Act 250 review; while firm data has not been gathered by any legislative committee, the amount of land subdivision ( i.e., fragmentation) subject to Act 250 is even less. Thus, the forest fragmentation provisions in the bill are nothing more than “feel good” language that will accomplish little.
Advocates of H.926 respond that the bill includes a new jurisdictional “trigger” that will encompass land use changes in the forest regions. This “trigger” is known as the “new road rule” and will require Act 250 reviews for proposed roads over 2,000 feet in length. The optimism of the advocates is not supported by reality. There used to be an “old road rule” requiring permits for the construction of roads more than 800 feet in length and related to the sale of land. Developers merely designed plans with roads no longer than 799 feet to avoid jurisdiction and there is no doubt that we’d see many 1,999 foot road designs to circumvent Act 250.
The inability, or unwillingness, of legislators and the governor to convey a sense of urgency about Vermont’s environment and our quality of life distinguishes them from the political leadership in Vermont in 1969 when Act 250 was passed. Back then, the politicians recognized their obligation to lead and they took the issues out to the towns and convinced the public of the need to act. The result was a law now known as Act 250 that was nationally recognized at the time as a landmark piece of legislation. Such is not the case today. Instead of courageous and inspired leadership, we get political gradualism even as the threats to natural resources accelerate. Future generations of Vermonters will ask, “How was this allowed to happen?”
The situation reminds one of the Shakespeare quote: H.926 is but a “walking shadow … full of sound and fury, signifying nothing.” No Act 250 bill in 2020 is better than the pending bill. Let’s regroup and try again in 2021 for a 51st birthday gift that we all can celebrate.
