This story, by Report for America corps member Carly Berlin, was produced through a partnership between VTDigger and Vermont Public.
As the 2024 legislative session nears, lawmakers again plan to consider sweeping changes to Act 250, Vermont’s half-century-old land use law. One option before them: giving municipalities that already have similar rules to Act 250 in place the ability to bypass state law and consider development proposals locally.
In planning circles, the practice is called delegating the review of development to municipalities.
That’s the subject of a draft report released last week by the Vermont Association of Planning and Development Agencies. It’s one of several studies directed by legislators earlier this year aimed at modernizing state land-use practices, from streamlining the work of regional planning commissions to updating state designation programs. A major study under way outlining proposals to overhaul the Act 250 process has yet to be released.
Despite that, the draft report, released on Nov. 14, states that delegating Act 250 review to municipalities with local rules “that are functionally equivalent” to state criteria could still be feasible, regardless of what future studies conclude.
Local review is a path for reform that Burlington Mayor Miro Weinberger advocated for last legislative session, arguing in an opinion piece for VTDigger in March that municipal delegation could eliminate duplicative local and state permit processes and “help us build more homes much faster without compromising environmental standards.”
Meagan Tuttle, director of planning for the City of Burlington, helped develop the framework for municipal delegation along with planners from South Burlington and Winooski.
“Reducing some of the time and costs associated with permitting particularly new housing projects that we very much need in the state is one of the central things that we see this helping address,” she said.
In practice, the report suggests a system by which a municipality’s regional planning commission would review its request for delegation, checking whether the municipality has local regulations and enforcement and administrative capacity to issue permits that meet Act 250 criteria. The Natural Resources Board would get final approval of the delegation, and would then exempt development within the municipality from requiring an Act 250 permit.
For municipalities, a delegation agreement would essentially mean “the NRB doesn’t need to do regulation here anymore, we’ve got it covered — we’re doing it at least as well as the NRB would do it,” said Charlie Baker, executive director of the Chittenden County Regional Planning Commission and a leader of the Vermont Association of Planning and Development Agencies.
Only a handful of municipalities across the state might reach the threshold for having functionally equivalent criteria to Act 250 or have expressed interest in delegation, including Burlington, Winooski, South Burlington, St. Albans City, Rutland City and Brattleboro, Baker said.
Proponents of the change argue that state law already allows municipalities to regulate things like lake shoreland protection and fire safety standards when local laws are found to be functionally equivalent. They also point to tens of thousands of dollars in cost savings, as well as months of time, associated with certain “priority housing projects” in state-designated development areas that are already exempt from Act 250 review.
Brian Shupe, executive director of the Vermont Natural Resources Council, said he has concerns about the municipal delegation model for reforming Act 250 and would oppose it.
“Act 250 is really designed to take a step back from just the community level and take a regional approach to looking at the larger scale development projects. To make it a little bit more politically independent of local government, and to protect state resources,” Shupe said. “I don’t think we can always trust the municipalities to do that.”
Shupe added that delegating review to some municipalities would further fragment the lack of consistency and coordination in the Act 250 process, already a complaint among housing developers. He said the VNRC is more supportive of reforms contemplated in the other crop of forthcoming reports.
Sen. Kesha Ram Hinsdale, D/P-Chittenden Southeast, who chairs the Senate Economic Development, Housing & General Affairs Committee, said subjecting development proposals to both local and state review can place them at risk of appeal, twice.
“I just don’t think it’s fair to put a project in double jeopardy — for them to have gone through one entire process and then be subject to Act 250 that can take them all the way back to the Supreme Court,” she said.
The risk of entering into a years-long legal battle “is clearly dampening housing development, at a time we need it most,” Ram Hinsdale said.
As the slew of land-use reports trickle in, Ram Hinsdale said “we remain open to any and all ideas” for reform going into the legislative session.
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