by Todd Heyman On Friday, the Vermont Senate declined to exempt from Act 250 review the construction of up to 24 downtown housing units notwithstanding the undeniable housing crisis in Vermont. Once again, the Legislature is deferring action on reducing Act 250 jurisdiction in favor of writing reports (two were requested last session). It’s time to point out something you won’t read in the newspapers: for the most part, the people making these decisions understand very little about how Act 250 actually works. Legislators are very rarely Act 250 permit holders and probably couldn’t identify even 10 significant accomplishments of the Natural Resources Board last year.
Most Legislators view the law in a grossly oversimplified fashion as either protecting Vermont’s natural beauty or impeding its economic development. As a result, their ideological debates center around whether a certain development priority is so important that it deserves an Act 250 exemption. What is lost on these legislators of all political persuasions is that Act 250 does not have to be the administrative nightmare that they all seem to accept is inherent to its existence. If the Legislature knew even a little bit about the daily workings of the Natural Resources Board, and sought to improve it, perhaps they would not have to spend time debating what development priority should be spared from Act 250 review.
Instead of asking for yet another report about a particular subject area (last year was accessory on farm businesses and location-based jurisdiction), it’s past time the Legislature mandated an annual report on what Act 250 actually accomplishes each year. For example, what were the top 25 projects denied a permit exclusively by Act 250 and what benefit did those permit denials offer Vermont? Perhaps more importantly, what were the top 25 permit conditions that were imposed on projects that were permitted, and what benefit did they offer Vermont? Writing this report might be harder than you think. Remember, Act 250 is a secondary layer of regulation on top of zoning and a host of other state laws already regulating wells, wastewater, public buildings, storm water drainage, etc. An Act 250 permit could be denied because an applicant failed to obtain a well and waste water permit or a local zoning permit, but that’s not the exclusive result of Act 250 regulation. Similarly, zoning permit conditions can cover many of the same issues that Act 250 often addresses.
A report identifying accomplishments that could not have been achieved through other local or state permitting is the only way to measure Act 250’s unique contributions against the costs of its imposition. In a recent dispute I had with the Natural Resources Board, I asked NRB’s counsel what the agency really does besides nitpick decisions about lighting, sound, and parking lots. She quickly pointed out that they also have the authority to put buffers on streams that the Agency of Natural Resources lacks. I did not find the answer comforting because granting that authority directly to ANR, the agency with scientific expertise, would make much more sense.
If the Legislature did ever decide to take a closer look at the details that matter, it would realize Act 250’s real problems lie in the nuts and bolts of its daily operation. And these problems will persist until the Legislature starts listening more closely to the permit holders who have gone through the process and live under Act 250’s eternal shadow.
As an Act 250 permit holder who has spent far too much time watching the NRB’s handiwork up-close on my own land and elsewhere, I wanted to propose some concrete ways to fix the NRB moving forward. Specifically, the NRB: (1) is structurally flawed; (2) employs undertrained staff with no subject matter expertise; (3) operates anti-democratically; and (4) most importantly (Governor Scott, if you’re listening), lacks moral leadership and a clear sense of mission.
First, it’s time to introduce true structural accountability to the District staff. Most people probably don’t realize that there is a single individual, a District Coordinator, in charge of each of Vermont’s nine districts that decides whether a permit or a permit amendment is required. While you can ask that person to reconsider a decision, ask yourself how often you change your mind? After that, your only option is an expensive court proceeding that could take so long that it is not worth moving forward with the project. The same is true for the three member commissions that decide whether a permit is granted or denied. Even a legally erroneous decision will likely take over a year and tens of thousands of dollars in attorneys fees to be corrected.
There is nobody in Montpelier who either has the authority, or believes that the authority exists, to overturn these erroneous decisions. In my case, the moment my court appeal was filed, the NRB’s lawyer admitted that the decision from the District staff was wrong and that she would not defend it. She of course knew it was wrong long before then but she felt she lacked the power to overturn it until the issue made it to court. Imagine how many people give up before arriving in court. And who sets up an agency where four people control all commercial economic development in over 10% of the state with zero agency oversight? Apparently, the Vermont Legislature does.
This can be fixed. Reconsideration motions should go to a board in Montpelier which is comprised of experienced land use lawyers and engineers with expertise in the issues that arise in Act 250. Those decisions should have a 30 day turn-around so obvious errors can be fixed promptly and compliant projects can move forward with haste. That said, the Court option must remain as a last resort with a genuinely neutral arbiter. To date, those appointed to NRB roles seem to drink the institutional kool-aid and believe mistakes are rarely made. Judge Durkin, one of two judges assigned to preside over Act 250 appeals, has given voice to those of us who labor before the bureaucratic machine by noting that NRB staff “can cause private individuals, unfamiliar with the intricate inner workings of NRB analysis, to look upon the permitting process with frustration.” It’s certainly an understatement, but coming from a sitting judge, it is telling you something that you ought to listen to.
Second, it’s time to put people with the right experience and training in NRB jobs. No District Commission should be without professional engineers and an experienced land use attorney. When you have people doing these jobs with no professional expertise, you get the wrong answers. And these wrong answers are apparently so frequent that NRB counsel told me that she has to be sensitive to District staff’s feelings when resolving appeals that reject their opinions. They apparently feel unsupported in the appellate process. Sadly, NRB counsel’s interest in protecting the district staff’s sense of self-worth exceeded her desire to make the law clear to both the public and the staff member who made the erroneous decision.
Indeed, the NRB’s single biggest concern in resolving my appeal was making sure to avoid any clear pronouncement on the law, which only allows the agency to take a different view of the matter the next time around with a different applicant. The NRB actually insisted on language in our settlement agreement that expressly reserved its right to treat other applicants differently. And if you were to compare the treatment of two on-farm restaurant projects – Charlotte’s Philo Ridge Farm and Woodstock’s Peacefield Farm – you would see that the agency relishes the opportunity to enforce the law differently based on applicant attributes that should be irrelevant. One business doesn’t even need a permit and the other (materially identical) business cannot get one.
Third, it’s time to eliminate the NRB’s anti-democratic tendencies, which include: (a) not deferring to municipal bodies on issues of local concern; and (b) creating a host of informal rules and norms that are inaccessible to the average person unless paying for a growing number of lawyers and consultants who make their living off the inaccessibility of the statute. Act 250 presents a lucrative business opportunity for the Act 250 professional class as it creates a more complicated web of informal expectations, rules, and practices. Instead, the NRB should seek out greater simplicity and transparency to minimize applicants’ need to hire Act 250 insiders.
For example, if a local zoning authority permits a project – particularly when using its democratically enacted rules about lighting, sound, and parking – Act 250 should defer to that decision. In the case of the Peacefield Farm restaurant in Woodstock, and a proposed brewery and distillery project in Dummerston, Act 250 blocked these projects notwithstanding the local authorities’ decision to permit them. In both cases, the NRB ignored the towns’ view of their own regulations and claimed that the projects were “shocking and offensive” in certain ways that the towns themselves had not. NRB staff should not use Act 250’s vague criteria to substitute their own personal judgment for the municipalities’ application of their democratically enacted rules.
And even in no-zoning towns, the NRB need not be involved in questions about lighting, sound, or parking. Those towns have the authority to issue ordinances to address such matters even without zoning. If the Legislature wanted to offer those towns even greater protection, it could simply require that they address specific land use issues in their town plans – eliminating any need for the NRB staff to make such decisions based on personal preference. It’s often referred to as the rule of law.
But most importantly, the agency lacks moral leadership and a clear sense of mission. Act 250 was never designed to block all economic activity but to be nimble enough to sort through the proposed projects to ensure that they fit with their proposed location. If the rules were clear and the procedures accessible, people could design their projects to fit within those confines. Instead of translating customary rules and practices into an accessible document for the public and NRB staff to rely upon, there is a deliberate fog overshadowing everything the NRB does. The NRB wants as much wiggle room as possible even if it comes at the cost of regulatory clarity.
But regulatory uncertainty thwarts all businesses, even ones that the state of Vermont is desperately seeking to promote. The NRB needs leadership that demands that its staff produce an exhaustive public list of customary procedural and substantive requirements, information about what presumptively would satisfy such requirements, and the specific reasons that the NRB would ever deviate from those standards. If the rule cannot be written down in advance, it should not be enforced. The words “shocking and offensive” should not be a catch-all regulatory phrase to enforce the personal preferences of NRB staff, but rather the term the judges use when reversing NRB decisions that block projects which do not violate a single municipal or state-wide regulation.
Unfortunately, the current leadership prefers to rule more whimsically, selectively enforcing certain rules depending on the applicant involved. Meaningful change is required on these issues for the sake of all the good projects out there. Making Act 250 work better might also eliminate the need for Legislators to debate which types of development are too important to subject to the NRB’s suffocating grasp.
Todd Heyman is a co-owner of Fat Sheep Farm & Cabins in Hartland, which operates pursuant to an Act 250 permit.