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Upholding precedent, Vt. Supreme Court amends pivotal Act 250 decision over Cavendish quarry

A dirt road winds with a stone wall alongside it, covered in snow against a blue sky.
Lisa Rathke
Associated Press File
The Vermont Supreme Court issued an opinion Friday that amended a decision advocates and former Act 250 board chairs say would have reversed years of precedent for how the land use and development law is applied.

The Vermont Supreme Court issued an opinionFriday amending a controversial decision that would have set major precedent for the way Vermont’s land use law, Act 250, is applied in towns that don’t have local zoning regulations.

This fall, the court upheld an environmental court ruling that a proposed quarry in Cavendish does not trigger Act 250 review.

But environmental advocates, as well as several former members of the board that oversees Act 250, raised concerns over the court’s reasoning.

Historically, in towns that don't have their own zoning regulations, Act 250 restrictions have applied to any development that sits on a parcel of land that is one acre or larger in size.

The trigger in towns that do have their own zoning regulations is 10 acres.

The Supreme Court at first ruled the Cavendish project was exempt from Act 250 because the footprint of the quarry itself was less than an acre in scale, rather than the plot of land it sits on.

The Vermont Natural Resources Council, among other groups, said this would gut development regulations in the roughly 45% of Vermont towns that don’t have their own.

"The [Vermont] Supreme Court recognized that its initial decision would overturn 50 years of case precedent and in some situations, would make the determination of Act 250 jurisdiction much more complicated and unpredictable."
Marcy Harding, former chair of the Environmental Review Board

The court this week amended that decision to say the project is exempt from a permit because of the size of the parcel — not because of its footprint.

Seven former chairs of the board that oversees Act 250 filed a brief with the court last year, warning its initial decision would go against years of precedent.

The court reopened the case for oral arguments earlier this year.

Marcy Harding, one of seven former chairs who filed the brief, said she was glad to see the court's opinion change.

"The [Vermont] Supreme Court recognized that its initial decision would overturn 50 years of case precedent and in some situations, would make the determination of Act 250 jurisdiction much more complicated and unpredictable," Harding said Friday.

The Vermont Natural Resources Council applauded the decision.

"This is consistent with years of administration, and the legislative history we reviewed, and we believe the court got it right," said Jamey Fidel, the organization's general counsel in a statement.

Despite an appeal from neighbors, the new opinion still finds the quarry will be exempt from an Act 250 permit — but on the basis that the parcel it sits on is less than an acre in size, not the footprint of the quarry itself.

Have questions, comments or tips? Send us a message or get in touch with reporter Abagael Giles @AbagaelGiles.

Abagael is Vermont Public's climate and environment reporter, focusing on the energy transition and how the climate crisis is impacting Vermonters — and Vermont’s landscape.

Abagael joined Vermont Public in 2020. Previously, she was the assistant editor at Vermont Sports and Vermont Ski + Ride magazines. She covered dairy and agriculture for The Addison Independent and got her start covering land use, water and the Los Angeles Aqueduct for The Sheet: News, Views & Culture of the Eastern Sierra in Mammoth Lakes, Ca.
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