Reprinted with Permission from the Author:

Act 250
by Joyce Marcel


What do we want Vermont to look like? What kind of economy do we
want? How much do we value our scenic beauty? What do we want Vermont to
be? These philosophical questions are once again converging around Act
250, the state's acclaimed -- and endlessly controversial -- environmental
protection and planning law.
The key to Act 250's success in the past, and to its survival in
the future, must be in the way it balances the needs of the business and
development communities with those of the environmental and tourism
communities.
Act 250 is a lot simpler than it is given credit for. Passed in
1970 at the urging of conservative Republican Governor Deane Davis, it
created nine District Environmental Commissions across the state to
evaluate certain development projects (10-plus acre projects, for example)
according to 10 criteria.
These criteria include examining: if the project has any potential
for causing water and air pollution; if it has a sufficient water supply;
if it will place a burden on existing water supplies; if it will have a
negative effect on traffic flow and safety, educational, municipal and
government services, scenic beauty or animal habitat; if it will be a
burden to the town it is planned for; and if it conforms to local and
regional plans.
If problems arise in any of these criteria, the commission usually
places conditions on the Act 250 permit to alleviate them.
The commissioners who decide these issues come from the community.
They are not government employees, although they are supported by a
professional staff. There is also an Environmental Board to hear appeals.
Only the head of the Board, appointed by the governor, is paid.
The centerpiece of the act is its encouragement of citizen
participation -- on the commissions, on the board, and private citizens who
get involved in the hearings.
"Because citizens have a voice in the Act 250 process, applicants
often work with neighbors and other interested citizens and groups to
address the concerns of people who will be affected by a proposed
development," says the Environmental Board's Act 250 brochure. "This can
result in a collaborative planning process that resolves issues and
mitigates impacts even before the permit application is filed. When this
occurs, all those who participate have some sense of ownership in the end
product."
Act 250 is credited with having protecting the Vermont landscape
for 31 years, and for insuring that large-scale projects are carefully and
thoughtfully planned. During the late-1980s' recession, for example, when
many large-scale developments in neighboring states were abandoned, some in
mid-build, and when many banks went belly-up from funding them, studies
show that Act 250's demand for thoughtful planning protected Vermont from
having similar problems.
"In its 31 years, I don't think there's any question that Act 250
has been instrumental in protecting the state's natural resources," said
Marcy Harding, the current chair of the Environmental Board. "But in
addition, over the history of this law, developers and their consultants
have learned that the best way to obtain all necessary permits for a
project, including an Act 250 permit, is to design their project in a way
that will mitigate the impact of the project on natural resources, on
neighbors to the project, and on the community."
There are some large numbers involved in Act 250. Going back to
1985, on the average, the District Commissions receive about 700
applications a year. In recent years, that number has been a little
smaller.
"On average, the average construction cost in millions for those
projects has been $348 million," Harding said. "However, in three of the
last four years, the average construction cost has been significantly
higher than that. It has been more than twice that in two of the last four
years. So while the numbers of applications is down somewhat, the dollar
volume of construction costs represented by those applications is
significantly higher than average."
Any way you look at it, Act 250 usually works well. According
Environmental Board statistics:
--- Almost 80 percent of the applications filed in last five years
have been handled as minor applications, which means they did not need
hearings.
--- Since 1992, the average number of decisions issued by District
Commissions per year has been 619. Of these, more than 98 percent of the
applicants received their permits.
--- Fewer than 2 percent of applications are denied by the
commissions. Over the last three years, on average, only 1.5 percent of
applications have been denied.
"The norm is to approve these applications, although
generally with conditions which serve to mitigate the impact of the
proposed development," Harding said. "Often those conditions are proposed
by the applicant. For instance, they may propose a certain landscaping
scheme to mitigate the visual impacts of the development, and then we would
incorporate that landscaping plan as a condition in the permit."
--- Most applications have no opposition.
--- Since 1985, the average number of appeals filed from
commission decisions has been 4.6 percent; that figure has decreased
substantially since 1991.
"On the average over the last 16 years, 31 appeals have been
filed each year, which represents 4.5 percent of the cases," Harding said.
"So it's a fairly small percentage. It's also interesting to note that
generally, on the average, half are filed by applicants who either were
denied or who received a permit with conditions they choose to appeal, and
half are appealed by opponents."
A very few -- but large and high-profile -- development cases have
made Act 250 vulnerable to attack.
"I think it's the large, highly visible projects that tend to grab
the headlines," Harding said. "Those projects generally have more
significant impacts on neighbors and communities. Some people base their
opinion of Act 250 on those very high-profile cases that undergo greater
scrutiny in the Act 250 process, often by virtue of having very strong and
well-organized opposition. The business community continually expresses
concern about Act 250. I would add that a number of Vermonters strongly
support Act 250, and believe it should be made stronger."
Anti-Act 250 lobbyists claim that the environmental and citizens
groups which challenge large development projects, especially on appeal,
have become an enormous problem.
"Stowe is going through a master permit for Act 250," said Chuck
Nichols, the senior vice president of the Vermont Chamber of Commerce.
"They've spent over a million and a half dollars. The major -- if not the
only-- group they've been trying to satisfy is a consortium of state-wide
environmental people. That group may never appeal, but the applicant
spends an awful amount of time and money trying to prevent that appeal from
taking place. If their ability to appeal was lessened, the applicant could
spend more time dealing with people who are truly impacted."
Environmentalists, however, call this "legislating by anecdote."
They point out that the close examination of a large project like Stowe,
which will have a significant impact on the environment, is exactly what
Act 250 was designed to do.
"The perception out there, perpetuated by certain members of the
business community, is that people are gumming up the works," said Steve
Holmes of the Vermont Natural Resources Council. "It just ain't so. When
you peel away the layers, it seems like the Agency of Natural Resources
permitting process and the local planning permit process make things take
longer. So when the project gets to Act 250, which in general is a shorter
process -- and that is born out by statistics -- people just make this
sweeping statement, 'The whole Act 250 process is holding me up.' But when
they start talking, they don't always reveal that it may have taken them
longer to get their ANR permits because there were some issues there."
For the most part, environmentalists praise Act 250.
"As a basic process, it's well administered, and it's one of
Vermont's strongest environmental laws," said Mark Sinclair, senior
attorney with the Conservation Law Foundation. "It's been administered in
a decentralized, non-legalistic way. By encouraging citizen participation,
it's actually taught people how to protect their environment and get
involved in the environmental future of the state. It's also improved our
democratic management of natural resources."
Business groups attack the heart of Act 250, which is citizen
input. They want controls put on who can testify in District Commission
hearings and on who can appeal commission decisions. "I'm afraid that
Act 250 has become a structured NIMBY (Not In My Backyard) process,"
Nichols said. "People have learned to use the process to stop things they
don't want. Should one citizen be able to stop something that a lot of
people want? Here in central Vermont, there was a group fighting
Wal-Mart. We were trying to identify who they were, and we could only
identify one individual. So it delayed the Wal-Mart process, and I think a
lot of people wanted a Wal-Mart at the Berlin Mall. Sometimes, the groups
are only two or three people. In some instances, people have extorted money
from developers. There should be a limit. In my view, in Act 250 the
standards are there, and if you meet those standards, you should be able to
get your permit."
If the development community wants to put up hurdles to citizen
participation, it is "a very sad statement," Sinclair said.
"The changes being proposed to Act 250 will stack the deck against
average citizens and in favor of developers," Sinclair said. "The whole
principle behind Act 250 is full public participation. If you look at Act
250 in terms of its process, it's not broken. Frankly, there are too many
permits. District Commissioners rarely say no. Developers usually get a
green light in Act 250. I think in some ways Act 250 is a paper tiger.
It's not strong enough."
The idea that the process takes too long is serious and legitimate,
said James Matteau, executive director of Windham Regional Commission.
"But in the last few years, Marcy Harding and her Environmental
Board have made many changes to streamline the process," Matteau said. "I
don't think the board gets properly credited for that, or the commissions.
The process is faster. If you want to come in at the 11th hour with an
issue, you'd better have a good reasons why you weren't there earlier. A
lot of moves to fix Act 250 today are based in grievances that are years
old. People should look to see if the particular issue they want to fix is
still a problem. They might be surprised."
Still Matteau is not surprised that Act 250 remains controversial.
"Who wants more rules limiting what they want to do?" he said.
"Nobody."


ON THE RECORD

The most recent effort to change Act 250 came in March in the
Statehouse, when the House passed a bill, H-475, that came from the Natural
Resources Committee. At this writing, it has yet to be considered by the
Senate.
Among other things, the bill sets up a three-year pilot program to
put a sample of 12 District Commission hearings, from different parts of
the state, "on the record."
The concept of on-the-record needs a little explaining.
"Now, at the District Commission level, you present your case in an
informal manner," said Rep. David Deen (D-Westminister), who is on the
committee. "Then, if there's an appeal, it goes to the Environmental
Board, where the parts that are contested are heard 'de novo' -- all over
again. The claim is that the process will be quicker if we put things on
the record at the commission level. Then if the Board hears an appeal, it
is based on a record created at the commission. It doesn't start all over
again. But the bill also says that the Environmental Board can hear
additional testimony, if there is a good reason why it was not heard
before."
This represents a significant change.
"At the District level now, there is a free exchange between
applications, citizens, and the commissioners," Deen said. "It is
structured by the chair, but it's a free flow of information. By going on
the record, you are now in a quasi- judicial mode, which means depositions,
evidence, and appropriate challenges to depositions and evidence.
Essentially, it replicates the courtroom procedure known as discovery."
Because the District Commission would be sitting as judges in an
on-the-record hearing, they cannot directly interact with any of the
parties, Deen said.
"So the flow of information will be restricted," Deen said.
"Business representatives at the state house are convinced that this
process will speed up Act 250 applications."
Developers claim that on-the-record hearings will cut back the time
and money they have to spend on getting permits.
"The issue with Act 250 is that when it first started, decisions
were five or six pages long," Nichols said. "They're 80 or 90 pages now.
It's become very much a process. You have to know the case law and the
rules. A simple project, most times, doesn't have trouble. But if it's a
complicated project, it's a very legalistic process. And I'm not so sure
we're gaining the environmental protections we all want. There should be a
simpler way."
Deen feels that putting facilitators in the District Commission
offices to help business deal with the Act 250 process will speed things up
in a more productive way. To that end, H-475 also has a pilot project that
puts a facilitator in the busiest District commission office in the state,
Barre, to assist first-time small development projects.
The Environmental Board supports "on the record."
"The Environmental Board has not considered this bill section by
section, but it would be fair to characterize this bill as one the board
will support," Harding said.
Opponents of "on the record" claim that the proceedings will make
citizen participation far more difficult.
"The District Commission hearing is where the public first begins
to understand what's going on with a project," said Holmes of the VNRC.
"So on-the-record puts them behind the 8-ball. To put together a case to
challenge a permit takes time and money. This on-the-record thing, even if
it's just a pilot with only 12 hearings, is going to make it much harder
for anyone to participate in Act 250 without having an attorney and expert
witnesses, and without spending a lot of money and time. And that includes
businesses as well as citizens. I think on-the-record helps big developers
like Wal-Mart, Home Depot and the ski areas. It's not going to help Mom and
Pop."
Harding agrees that going on-the-record may make District
Commission hearings "more formal and legalistic," but she thinks there are
mitigating circumstances.
"There are cases that are already quite formal and legalistic at
the District Commission level, and I think in some instances, it would be
appropriate for those commissions to create a record of their proceedings
and have an appeal considered on the record," Harding said. "I would add
that I have significant confidence in our District Commissions to consider
each request for a recorded hearing and decide whether to grant it based on
the circumstances of the case. So if the commission believes that one side
will be limited in their ability to effectively participate, they may not
grant the request for a recorded hearing. But when they feel all the
parties are prepared to participate fully, then they will."
The pilot programs covers only 12 cases over three years.
"Hopefully, the commissions will choose those 12 cases carefully,
so we can have a fair assessment of whether or not record review has the
benefits that those supporting it believe it will have, without having
adverse consequences," Harding said. "This approach will also encourage all
parties to put on their very best evidence at the District Commission
level, and we think that can improve our process."
H-475 has some provisions that the Environmental Board can be
enthusiastic about, Harding said. For example, it eliminates the rule that
roads over 800 feet long come under Act 250 review.
"It's been a rule that has been difficult to administer," Harding
said. "And for that reason, we support repealing it. But in exchange,
there's a provision that would provide jurisdiction under Act 250 for
subdivisions of six or more lots within a five-year period in a town which
does not having zoning and subdivision regulations. We think that's a
positive change."
Another provision in the bill would prevent applicants who are
already in violation of an Act 250 from getting another permit.
"We think that will help us with compliance efforts," Harding said.
"It will provide a built-in incentive for developers to file applications
frequently, and to remain in compliance with existing permits."

APPEALS

At the last minute, Republicans added a floor amendment to H-475
that prohibits "materially assisting parties" from appealing District
Commission decisions. It was this provision that caused Rep. Deen, among
others, to ultimately vote against the bill, which passed 93-46.
Materially assisting parties can be, for example, people who own
the house close to a proposed quarry and are worried about the noise, or
the possible devaluation of their property values. They can be people who
live in the neighborhood or an adjoining community and worry about
additional truck traffic. They can also be environmental and public
interest groups.
These people get their chance to speak at the discretion of the
commission, and only if the commission believes their testimony will offer
important information.
"It is usually the opponents to a project who provide information
to the commission about the adverse impacts on the environment," said
Stephanie J. Kaplan, an attorney who specializes in land use law,
especially Act 250 hearings. From 1986 to 1994 she was the executive
officer and general counsel to the Environmental Board. "These are people
who donate their own time in the Vermont tradition of an active and
involved citizenry. Without their service, important facts about the
impacts of a development would never come to light."
The materially assisting witnesses are different from "expert
witnesses," who are hired guns. Working for either the developers, the
environmental groups, or the abutters, they usually have no right -- or
reason -- to appeal.
Unless H.475 passes the Senate, all parties now have the right to
appeal a decision to the Environmental Board. But only statutory parties
can appeal to the Supreme Court.
Relatively few materially assisting witnesses ever appeal, Kaplan said.
"But the cases they are involved in are usually the large
developments that have large impacts that should be thoroughly
scrutinized," Kaplan said. "Eliminating appeal rights for materially
assisting parties will only hurt Vermont's communities and environment."

TIME

Time is money, and that makes time a big issue in Act 250.
Opponents of on-the-record say they only learn about a project's potential
impacts when it arrives at the District Commission. Developers claim
citizens should get involved earlier in the permitting process.
"If we can figure out the entire genetic structure of the human
being, we can figure out how to let people know there's a hearing," said
Kevin Dorn, the executive officer of the Home Builders and Remodelers
Assoc. of Vermont. "Not hearing about a project until the District
Commission level is a red herring. It has no validity. Because people are
involved in an Act 250 permit hearing now, it doesn't mean they couldn't be
involved in an ANR or local level permitting hearing, under a newly
reformed process."
Opponents protest that because ANR hearings now are closed, and
because local planning boards usually have less-stringent criteria for
examining projects, Act 250 is usually the first time they have a chance to
study a project.
"The applicants been working on a proposal for months, if not
years," Kaplan said. "They have done geological studies, economic studies,
and traffic studies. They have hired consultants and expert witnesses.
They've gotten Agency of Natural Resources permits -- where the public is
usually not even notified about the project and there are no public
hearings. Then they file an Act 250 application. With the larger
developments, they are filing a lot of material. Neighbors are not
notified. Then, all of a sudden, somebody realizes what's going on."
At that point, Kaplan said, "Neighbors have to figure out if it's
going to affect them, figure out what Act 250 is about, figure out if they
want to participate, if they need expert witnesses, if they can afford
expert witnesses, and find them in enough time for the witness to review
the material. They have to decide, do they need a lawyer, can they afford
a lawyer, can they form an organization? How do you form an organization?
How do you raise money? They need to do all that in a very short period of
time, and usually it has to be done in their spare time because most people
work and have very busy lives."
When applicants spend money on permits, lawyers and expert
witnesses, they do it because they have an expectation of economic gain,
Kaplan said.
"But the neighbors are trying to protect their own community or
property or the quality of their lives," Kaplan said. "All they have to
gain is to stop something, or get something modified. The way it works now,
the neighbors will participate to the best of their ability at the District
Commission hearing. But there's no way to put on an effective case between
the time an application is filed and the hearing. They can express their
concerns, but they're still on a learning curve. Act 250 rules are now an
astounding number of pages long. They are extremely complex and difficult
to figure out without a lawyer. It's very difficult to effectively prepare
for something like this. It's almost impossible to do an effective case at
the District Commission."
The complaint that time is an issue is "totally bogus," Nichols said.
"Here these groups are testifying that they have to hire lawyers
and experts -- but nothing is going to change in that," Nichols said.
"They say they have no time? But the projects have been through the local
processes. Where have these groups been for that? They've gone through
the ANR process. Where have they been for that? There's been lots of time.
They should get their case out there. Let the applicant try to address
those issues so everyone is happy. Don't have the applicant go through the
process multiple times. Sometimes people hold back until the Environmental
Board. It goes on and on and on."
Nichols said that Act 250 has almost taken the permitting process
"out of the hands of the normal Vermonter."
"When someone wants to try to do something, if it's at all
controversial, they had better have a lot of money or they're not going to
make it," Nichols said. "The irony is that the people who can go through
the process multiple times are the large, out-of-state corporations."

DUPLICATION

Many complaints about Act 250 confuse the law with the entire
permitting process.
"It's safe to say that when the public, especially the business
community, thinks about Act 250, it is often confused with other permit
programs, like local permits and ANR permits," the Environmental Board's
Harding said. "And I think it's also fair to say that because a number of
ANR permits are used to satisfy various criteria in Act 250, that when
there's a problem with one of those other permits, and that problem delays
the issuance of an Act 250 permit, generally, Act 250 is perceived of as
the problem."
The business community claims that Act 250 duplicates the ANR
process, adding more time and expense to a development.
"There's an awful lot of duplication of reviews between the Agency
of Natural Resources and Act 250," said Nichols. "When Act 250 was passed,
ANR didn't have a lot of the permits it had now, because the federal laws
hadn't been passed. So the applicant has to go through the local level,
then ANR, then Act 250, then the appeals. You may have a permit at ANR,
and then Act 250 modifies certain conditions that need to be changed in the
ANR permit or the local permit. It's become a very involved process."
According to Nichols, the process should be changed so that
scientific and technical issues are resolved at the ANR and never go to Act
250.
"They get the permit, and that's the end of it," Nichols said. "It
doesn't go to Act 250. And if you need to open up the process at ANR, to
get more public participation, then great. Do it."
Many environmentalists agree with Nichols on this issue.
"We suggest taking a look at the permit process as a total -- and
we've even suggested that we might consolidate the Act 250 and the ANR
permit process for many projects," said CLF's Sinclair. "You could have
one hearing on an Act 250 application where you hear all of the significant
ANR permit issues - storm water, waste water discharge, air. One issue in
the development community is the sequence. To them, time is money. So why
not create a forum so we could do a consolidated hearing?"
However, Act 250 does not really duplicate ANR permits, Sinclair said.
"The ANR looks at traditional issues, like discharges into streams,
air pollution," Sinclair said. "Act 250 looks at more complicated issues,
such as the impact of a development on the municipal resource structure, on
habitat, the transportation impact of a mall, the effects on visual
resources. Those are questions that aren't answered by the ANR. So there
isn't any redundancy."

IS COMPROMISE POSSIBLE?

Vermont is going to change no matter what people want, Nichols said.
"At some point, all of us would like things to stay the way they
are," Nichols said. "But that's not reality. Vermont is going to change
some, and we hope for the better. I don't know a business person in
Vermont who doesn't want to achieve appropriate environmental protection.
Business people are more than happy to meet reasonable environmental
conditions. They want to. They live here for the same reasons that
everybody else does."
Harding hopes that any changes the Legislature makes to Act 250
keeps it strong.
"Act 250 has served this state remarkably well over 30 years, and I
hope through this legislative season, the law remains strong so that it can
continue to protect us in the future," Harding said.