Act 250, the state's main development review law, turned 50-years-old last year, and critics, including Gov. Phil Scott, say the law is showing its age. Scott signed an executive order this month, saying it will bring more consistency for developers. But some lawmakers are pushing back.
At a news conference this week, Scott reiterated his position that the local district commissions, which are charged under the law to ensure proposed projects comply with environmental and social criteria, produce inconsistent decisions that vary regionally.
"I think there is a problem," he said. "As somebody that's been on both sides of this issue over a number of years, over my 30 years in construction and developing and so forth, I see a vast amount of different opinions that are given, depending on where you go between districts."
The Legislature has tried but failed to update Act 250 over the last few years. While Scott says his executive action will ensure more uniformity for land use development across Vermont, the fate of his order lies in the Vermont Statehouse. Lawmakers have 90 days to reject his plan, and some are in strong opposition.
VPR’s Henry Epp spoke with reporter John Dillon, about how this attempt to modernize land use regulation led to a potential showdown over executive power. Their conversation below has been edited for length and clarity.
Henry Epp: So, we talked about some of these issues last year, when an Act 250 bill died in the Legislature. So, can you bring us up to date on where we are now?
John Dillon: Sure. First, a real quick overview of Act 250 itself. So, it was written in 1970, before many other state and federal environmental laws, and it was done in response to what Republican Gov. Dean Davis saw as unchecked development, primarily around ski area resorts in southern Vermont.
So, the plan Davis and others came up with was to have major projects reviewed by nine local district environmental commissions. And these citizen-based panels were supposed to make sure the projects comply with 10 environmental and social criteria outlined in the law, and these would be things like impacts on water quality, traffic, town services and the like.
Flash forward 50 years, and the question is, does that still work? And Gov. Scott and many in the business community say these district commissions produce inconsistent decisions that vary from region to region. And so, to address that, the governor issued an executive order this month that does what the Legislature has failed to do over the last two years.
What his order does, is it consolidates the development review process in a three-person professional board, which he would appoint and which he could fire at any time. And to get the local input, Scott would have two regional commissioners included on this three-person board to review projects from their particular areas. While many in the Legislature support that idea, they aren't so happy with how the governor is going about it. And that's led to some of this pushback.
More from VPR: Gov. Scott Vetoes Act 250 Update, Says Bill Creates Uncertainty For Trails, Forests
OK, so let's go into this central complaint that the law is being inconsistently administered between these nine different local commissions. What do they mean by that?
Well, that is definitely the big complaint with Act 250 right now — that you've got this big development review law that's up to nine different panels around the state to interpret.
But there's wide disagreement over actually how big a deal that is. I talked to Tim Taylor — he's a Thetford farmer and chair of the District #3 Environmental Commission that covers parts of the Upper Valley. He was appointed by Democratic Gov. Peter Shumlin and later reappointed by Phil Scott. Taylor says that the vast majority of Act 250 applications, over 95%, are actually approved.
And he questions whether the law really needs a major overhaul:
"So, what's going wrong here? And the fact is, nothing is really going wrong. Act 250, the law, is very, very stable. It's very settled, I guess I would characterize it as. There's not a lot of issues to argue about right now."
And Taylor says, yes, maybe there is some inconsistency from region to region. And in particular, he says that that might happen in how the commissions apply what's known as the "aesthetic standard," which has to do whether the look or aesthetics of a project fit in with the area — and that's done according to what a "reasonable person" would think.
But Taylor says these inconsistencies happen because of different facts of the case and the different communities where the projects are proposed:
"And quite obviously, that particular standard, that 'reasonable person' standard lends itself to a certain degree of not inconsistency, but having to take a look at the individual facts situation, the context in which the proposed development is going to be whether, you know, it's in a little village, in a rural village or whether it's out on a hillside in the country."
All right. But it doesn't sound like Gov. Scott agrees with this view.
Not at all. As we heard at the beginning, Scott comes from a business background, he ran a construction company before entering politics, and he is pretty firm in his view that the law presents this uneven playing field for businesses across the state. And he says the problem really is the citizen-based nature of these local commissions:
"So, you have a number of different people from all walks of life in these district commissions. It leads to a lack of consistency."
While Taylor and others say "it ain't broke, why fix it?" Scott clearly wants it fixed and fixed now, and that led to his issuing this executive order in mid-January that creates this professional board.
More from VPR: Acting On Act 250? Legislation Stalled As Vt. Lawmakers Take Long View On Development
OK, and how has the Legislature reacted to this order from Scott?
Well, not overwhelming support, I would say, but I think you have to sort of divorce the substance of the order from the mechanism itself. While some like the idea of a professional board — they took a lot of testimony, one version of the bill passed last year would have done that — legislatures also zealously guard their power. And they're questioning if this is an overreach by the governor of his executive powers.
So, while Scott says he's totally within his rights under state law and the Constitution, that's not maybe the opinion of all lawmakers.
So, what's going to happen next here?
Well, they are taking testimony, and Scott and his staff are actually complaining that these Democratically-controlled committees aren't hearing from witnesses in the business community who would describe these inconsistencies.
But there's another sort of fascinating legal challenge in the background, or potential legal challenge in the background. Scott says both chambers of the Legislature need to reject this order in 90 days, or else it becomes law. And the Legislature's lead lawyer, and he cites the state statute itself, says only one house or one chamber is needed to toss this order.
I can't predict exactly what's going to happen next, but it seems that what the governor thought was an easy path, or an easier path, to update Act 250 without all this painful legislative sausage-making, I think some lawmakers may want to show him otherwise.
Have questions, comments or tips? Send us a message or get in touch with reporter John Dillon @VPRDillon.
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