Permitting Act 250 changes

Vermont Business Magazine, Apr 01, 2004 by Kelley, Kevin

Some developers expect to gain significant advantages from an overhaul of the Act 250 appeals process likely to be approved by the Vermont Legislature this session.

Passage of the legislation would also be claimed as a victory for Republican Governor James Douglas, who has made permit reform one of his top priorities.

At the same time, however, many environmentalists would not regard enactment of the pending compromise as a defeat for their cause. And some analysts argue that the package assembled by a House-Senate conference committee actually contains few benefits for developers, and could even turn out to be empty of substance.

The leading architects of the proposal acknowledge that it may prove to be as much about perceptions of the Act 250 process as about the ways in which the state's developmentreview law is actually applied. Successful politicians generally agree, however, that perception sometimes matters more than reality.

"We have solved real and perceived problems at both the local level and the appellate level," says Democrat Virginia Lyons, lead negotiator on the Senate side.

Because the proposed changes may affect the way in which some controversial development projects are handled, the conference-committee legislation "will set a tone and make a difference in perceptions," adds Republican William Johnson, the House's point man in the Act 250 deliberations.

Charles Nichols, environmental lobbyist for the Vermont Chamber of Commerce, says the business community would welcome enactment of the reform legislation.

"It certainly sends a message. But whether it will make a significant difference - that's hard to tell at this point," Nichols says.

In accordance with a key feature of the proposal, all appeals of Act 250 development permits would be consolidated in the state's Environmental Court, which would be expanded from one judge to two-and-a-half fulltime positions. The citizenbased Environmental Board and Water Resources Board would no longer hear appeals of Act 250 rulings, but would continue to exist as a merged entity setting broad policy as well as rules governing the Act 250 process.

The deal being finalized by House and Senate conferees resolves the contentious issue of "party status" largely in favor of the continued participation of ordinary Vermonters in development reviews. Any citizen considered "aggrieved" by an Act 250 decision would be able to express his or her views at appellate venues, including the Vermont Supreme Court.

But the proposed shift of authority from citizen boards to judicial forums does not fully preserve the status quo in regard to party status, says Mark Sinclair, director of the Vermont office of the Conservation Law Foundation. The new arrangement will serve to "chill participation by average citizens in Vermont," he argues.

Sinclair notes that the envisioned appeals process will entail legal transaction costs. As a result, he suggests, "every citizen who wants to voice concerns will have to hire a lawyer, and that will tilt the playing field to favor major developers."

The bill that both Lyons and Johnson say is likely to become law would also consolidate procedures for local zoning and permitting cases.

"That will be a big step in making progress on the local level," say Johnson, a Canaan Republican who chairs the House Natural Resources Committee.

A major aim of the overall initiative is to ensure greater predictability in the appeals process, Johnson adds.

"Some rulings by quasi-judicial boards have been all over the place, depending on the makeup of the board and what the 'Politics are. The analogy I've heard throughout the eight years that I've been mediating on Act 250 is that the business community wants either a green light or a red light," Johnson says. "What frustrates them is a flashing yellow light."

Johnson expresses optimism that all the proposed changes will work to facilitate approval of environmentally sound development projects in Vermont. He points out that the bill does not provide for any modifications in the 10 basic criteria used for judging the environmental suitability of developers' proposals. Vermont's 32-year-old land-use law would remain unchanged in its essence, Johnson says.

"I dont see what we're doing as a loss for environmentalists."

Conservation attorney Sinclair agrees that the proposal is unlikely to have negative consequences for the state's environment. In fact, he suggests, the legislation may result in denial of a larger number of permits.

"I think developers will come to regret this legislation. There will be more "NOs" to development that isn't sustainable."

"One good aspect of the bill," Sinclair explains, "is that it will take politics out of environmental regulatory decisions."

"The E-Board reflects the views of whoever is governor, and this current E-Board always says "YES" to development."

Appeals decisions made by the Environmental Court, on the other hand, "will be based on facts and the law, with no influence by the governor," Sinclair says. "Decisions will be more objective and fair."