Julie Tower

February 22, 2001

The State of Vermont boasts a statewide land use planning tool commonly referred to as Act 250.[1] Unlike the "bulk of traditional zoning and subdivision legislation, which is merely state enabling legislation permitting regulation of land use on a local or regional level . . . Act 250 establishes a mechanism for review of certain land use activity at the state level."[2] Specifically, Act 250 complements existing local zoning and subdivision control legislation, and ultimately requires development projects meeting certain criteria to gain state approval, in addition to that normally required at the local level before being carried out.[3] Act 250 effectively establishes a permitting process that requires a developer to demonstrate that a proposed development project meets ten specified criteria, as part of an effort to "ensure economic growth without environmental catastrophe."[4]

In essence, Act 250 is considered a "visionary law" that aims to preserve the state's natural environment.[5]  However, some Vermonters argue that the law needs revamping, particularly in the way of improving the permitting process.[6]  For example, developers have argued that the Act 250 permitting process favors large businesses and corporations, ultimately working against housing development.[7]  Moreover, it has been suggested that much of the Act 250 permitting process is redundant and excessive in cost,[8] not to mention that "Act 250 is making Vermont too expensive to live in, contributes to sprawl, puts builders out of business and is just another example of useless government intrusion on private citizens."[9]

In an attempt to address Act 250 concerns, the Vermont House and Senate Natural Resources Committee held a joint hearing in early February as part of a continuing effort to determine if, and how, Vermont's Act 250 should be changed.[10]  While the general consensus of those attending the hearing, including builders, developers, and lawmakers, was that "Act 250 shouldn't be thrown out,"[11] there appears a distinct push for tightening the law, such as allowing residents to appeal an Act 250 permit to the Supreme Court, and creating a citizen-permitting process advisor.[12]  Improving the Act 250 process, however, may constitute a challenge since in 2000 Vermont House-approved efforts to rework Act 250 failed in the Vermont Senate.[13]

Dealing with development issues, such as suburban sprawl and permitting, is not limited to Vermonters, but is a topic of intense concern among Americans generally.[14]  Two recent Sierra Club national sprawl reports have indicated that poor federal, state, and local planning policies are a key factor in fueling sprawl.[15]  Based on this conclusion, tightening Vermont's Act 250 to make it an even more effective land use planning tool may play a role in minimizing sprawl in Vermont.  Smart growth strategies, such as channeling growth away from sensitive habitat, increasing citizen education, and involving community in land planning-strategies which appear integral to Act 250 and would be furthered by improving the existing law-may further help stabilize population growth and sprawl in Vermont.[16]

Improving Vermont's Act 250 to eliminate or minimize recurring concerns, such as with the permitting process, may not eradicate all of the criticism directed at statewide planning.  Yet, an efficient planning tool could benefit Vermonters by focusing attention on the environment, health, and quality of life, rather than on statutory construction.[17]  For example, a more efficient and effective permitting process might encourage better land-use planning and responsible development.  Ultimately, better planning could stabilize potential problems, like traffic congestion and destruction of open space, that are appearing in parts of Vermont such as Chittenden County.[18]  Arguably however, Act 250 may inevitably clash with large development forever, since the law by nature seeks "to mitigate or negate the impacts of a project."[19]  As such, regardless of whether the law is improved, some developers might continue to claim that Act 250 puts Vermont builders out of business and constitutes government intrusion.[20]

What seems crucial in deciding whether to go ahead with changing Act 250 is not to ask whether all Vermonters will be happy with the changes-achieving this goal would be an impossible feat-but whether the changes will uphold the original intention of the Act.  If the changes support coordinated and controlled use of Vermont lands and increase administrative efficiency, which advocates for change imply would occur with legislative action, then it very well may make sense for the Vermont legislature to respond accordingly.[21]  If anything, legislative attention to Act 250 will remind Vermonters that the original goals and objectives of the law are alive and well-equipped to deal with land use planning and citizens' concerns.

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[1] DANIEL P. SELMI AND JAMES A. KUSHNER, LAND USE REGULATION 410 (1999).

[2] Committee to Save the Bishop's House, Inc v. Medical Center Hospital of Vermont, Inc., 400 A.2d 1015 (1979).

[3] See id.

[4] Michelle Henrie, Large Development Meets Vermont's Act 250: Does Phasing Make a Monster or Tame It? 23 VT. L. REV. 393, 396 (1998). For example, Act 250 does not apply to projects involving less than ten acres of land. VT. STAT. ANN. tit. 10 § 6086(a) (1997) (listing the criteria).

[5] Mike Eckel, Statehouse Hearing Praises, Pans, Ponders Act 250, ASSOC. PRESS, Feb. 8, 2001.

[6] See id.

[7] See id.

[8] See id.

[9] Id.

[10] See id. Act 250 was passed in 1970. See Henrie, supra note 4.

[11] Eckel, supra note 5.

[12] See id.

[13] See id. However, some speculate that with recent changes in the political composition of the Senate, it is possible that efforts to improve the law might be successful.

[14] See Sierra Club, A Complex Relationship: Population Growth and Suburban Sprawl, at http://www.sierraclub.org/sprawl/population.asp (last visited Feb. 13, 2001). For example, a recent survey indicated that "suburban sprawl is tied with crime as a top local concern for most Americans." Id.

[15] See id.

[16] Id.

[17] See Sierra Club, Sierra Club Challenge to Sprawl Campaign, at http://www.sierraclub.org/sprawl (last visited Feb. 13, 2001) (noting that poorly planned development threatens the environment, health, and quality of life).

[18] Vermonters can attest to this based on the development in Williston, Vermont. See e.g., Eckel, supra note 5.

[19] Henrie, supra note 4, at 400.

[20] For example, some believe that the problem with Act 250 ultimately rests with the Vermont Environmental Board which is an "anti-growth Frankenstein Monster." See Henrie, supra note 4, at 394.

[21] See Henrie, supra note 4, at 399.