Vermont’s Supreme Court reversed course in a decision issued Friday that untangled confusion surrounding Act 250’s jurisdiction in towns with no zoning and subdivision regulations.
Recently, in a Supreme Court case that was deciding the fate of a stone quarry in Cavendish, Justice William Cohen included an interpretation of Act 250 that would have changed the way the law has been administered since its inception. The court’s revised decision, which restores the historic interpretation of the law, comes after multiple parties reargued the case.
Since it was enacted in 1970, Act 250, the state’s sweeping land use law, has had a large presence in towns with no zoning regulations. It’s designed, in part, as a tool for municipalities that otherwise have few ways of controlling development.
Act 250 was intended to curb “unplanned, uncoordinated and uncontrolled” uses of land. It applies to commercial and industrial developers who must work with one of the state’s nine regional district environmental commissions, which weigh 10 points of criteria.
Under Act 250, towns in Vermont are divided into two categories. The first, “1-acre towns,” are municipalities that don’t have zoning and subdivision regulations. There, developers need an Act 250 permit if their project is located on a parcel of land that is, in total, 1 acre or larger.
In the second category, “10-acre towns” — municipalities with zoning and subdivision regulations — developers need a permit if they’re building on a parcel that’s 10 acres or larger.
In the Cavendish case, called “Snowstone” after the name of the quarrying business, Cohen decided that it isn’t the size of the parcel, but the physical footprint of the project that determines the need for an Act 250 permit in 1-acre towns. If the project itself was smaller than an acre — around the size of a football field — it wouldn’t need a permit.
“Every lemonade stand on a parcel larger than an acre could need an Act 250 permit,” Cohen wrote.
The clause subject to the two interpretations is found in the definition of “development,” which, in a 1-acre town, is considered an improvement for commercial or industrial purposes “on more than 1 acre of land.”
While some developers said the change would help them streamline their projects, many who have experience with Act 250 administration have pushed back against this interpretation in the last few months. The Vermont Natural Resources Council — a group that worked to help craft Act 250 when it was created — and a collection of former Natural Resources and Environmental board chairs, all of whom administered Act 250, opposed the decision.
They argued Cohen’s interpretation contradicted legislative intent, would give municipalities few tools to control large development projects, and would undermine the purpose of Act 250, which has been widely credited with maintaining Vermont’s rural and wild qualities.
Meanwhile, in the state Legislature, the House Committee on Natural Resources, Fish and Wildlife has introduced a bill, H.509, reacting to the Supreme Court decision. If passed, it would eliminate the language in question from the statute, restoring the original interpretation of the law.
The Supreme Court reopened the case and heard oral arguments last month. All parties, including the attorney for Snowstone, agreed the historic interpretation of the law should remain in place. The new interpretation was irrelevant to the case, the attorney for Snowstone argued, because both the project footprint and the parcel size of the quarry are less than 1 acre.
The neighbors had argued that the landowner and the quarrier had tried to evade Act 250, and structured their transaction to that end.
The court decided Friday that the quarry does not fall under Act 250 jurisdiction because of the size of both the project and the parcel of land where it’s located.
“Following a motion to alter or amend by the Natural Resources Board, the court issued a revised decision, finding it unnecessary to decide if the doctrine of ‘involved land’ applied to 1-acre towns because the proposed project would be contained on a tract of land totaling less than 1 acre,” the decision reads.
In a statement, Brian Shupe, executive director of the Vermont Natural Resources Council, applauded the court’s decision to allow additional arguments.
“I believe we were able to help clarify longstanding practices in how commercial development in 1-acre towns has been treated under Act 250,” he wrote, “and we are very pleased with the court’s decision.”
