by Todd Heyman After what can only be described as a near uniform consensus in the state that Act 250 requires reforms in order to meet the challenge of the housing crisis and promote agricultural viability by facilitating diversification, the Vermont Legislature is proposing to do the unthinkable to achieve such reform in H.687: give the Natural Resources Board the authority to police itself by removing the Environmental Court from its role of ensuring compliance with Act 250.
The supposed justification is that the Environmental Court takes too long and doesn’t think “deeply” enough. Rather, it merely announces whether a proposed project complies with the Act 250 statute or not. Call me simple-minded but to me the answer actually requires less deep thinking. Add a judge or two to lighten the load on the court to make the process faster, and tell those judges to keep up the good work. Giving every dispute about land in the entire state to just two judges suggests to me that the “deep” thinking at play here is just overthinking.
Instead of judicial accountability, the Legislature wants a new NRB “professional” board that would hear NRB appeals leaving the applicant with only one recourse outside the agency, the Vermont Supreme Court. The oddest aspect of this proposal is that its legislative advocates in the House Committee on Energy and Environment will not dispute that the agency in its present form is inconsistent, unpredictable, and requiring reform. The agency already has “professional” lawyers and District Coordinators and yet the Legislature thinks five more professionals, who don’t have to worry about a court looking over their work, will somehow improve the situation.
The work of the existing professionals at the NRB does not appear to validate the thinking behind H.687. The NRB regularly issues inconsistent decisions and loses track of important paperwork that delineates the rights and obligations of permit applicants. Consider just one example: jurisdictional determinations on farms. Three times, the agency has allowed projects to develop on-farm dining buildings without the need for a permit: Philo Ridge Farm, Cloudland Farm, and the Fable Farm Collective. Despite this precedent, the NRB has blocked a project to open a restaurant on Peacefield Farm in Woodstock for years now. The Brave Little State podcast gave the NRB the opportunity to try to publicly explain why Peacefield was being treated differently and it declined to comment. When I tried to compare the information Philo Ridge Farm provided to the NRB to the Peacefield submission, the NRB professional I spoke with admitted that the agency lost the Philo Ridge Farm paperwork. So now, no comparison is possible. Professional just isn’t the word that comes to mind.
And that’s not an isolated example. On my farm, the agency tried to assert jurisdiction over my entire property even though it had previously lost a court case on the issue involving Whistlepig Whiskey’s farm, and it had previously limited its jurisdiction on other farms like Hill Farmstead, Jasper Hill, and Boyden Winery. The NRB didn’t relent until – notably – I appealed to the Environmental Court. Imagine if I had to go to a board of “professionals” within the NRB itself. I’m pretty sure I’d be preparing for an expensive and time-consuming Vermont Supreme Court appeal right now.
The NRB has also accused me of violating my permit when a neighbor held a birthday party in my barn. I was confused because I warned the NRB that the barn might occasionally be used for gatherings before I renovated it. The agency again relented but only after admitting that it had lost the jurisdictional opinion it had issued in 2017 (and my paperwork requesting it) that made clear those gatherings would not defeat the barn’s status as agricultural. I had to send the NRB professionals copies of their own opinion and my submission since they had lost track of both. But having witnessed the full-on restaurant in Philo Ridge’s Farm’s barn serving wine from Europe (which the NRB called agriculture), the experience simply did not inspire a lot of faith in NRB professionalism.
Accordingly, the Legislative effort to insulate the NRB from judicial accountability is perplexing and frightening. Very few lawyers in rural areas are comfortable taking an appeal to the Vermont Supreme Court so this is great for the high-priced lawyers in Burlington and Montpelier. But let’s face it, most permit applicants –unless they have a lot of resources -- won’t bother with the multi-year appeals process and will never get a day in court. So now we will have “professionals” who are not judges (let alone lawyers) interpreting statutory language to pronounce what the law means.
The Vermont Constitution certainly didn’t have this mind. It calls for the separation of the judiciary, executive, and legislative, and forbids one branch from exercising the power of another. Indeed, separation of powers has done pretty well for hundreds of years in our democracy.
But if we are going to start re-thinking the foundational underpinnings of our democracy, it occurred to me that maybe some “deep” thinking might be beneficial in other areas of Vermont government as well. Afterall, after two years of studying the housing crisis and farm viability, the Legislature has done very little to create a housing boom, or ease the path for farms to adopt more viable business models in today’s economy. That’s a lot slower than the Environmental Court.
Perhaps we could simply disregard the Vermont constitution and replace our part time legislators with a small group of year-round professionals who might get the job done better and faster?
Todd Heyman and his wife own and operate Fat Sheep Farm & Cabins in Hartland, VT and is an Act 250 permit holder.