On September 2, 2020

Legislature: don’t rush to amend Act 250

Dear Editor,

One of the brilliant features of the original Act 250 lets the public have a real voice in the proceedings of an Act 250 permit application. No other state or local permit proceeding allows such meaningful participation. The Legislature is now considering H.926, changes to Act 250. Among other things, H.926 will reduce the ability of the public to participate in Act 250 proceedings. I think those changes should not be made.

H.926 is not being adequately considered in the Senate because the remote procedures inhibit public participation and committee discussion. Committee time is rationed because of limited bandwidth in the State House. House committees get perhaps 10% of their former, in-person time. Senate committees, perhaps one-third. Most of that limited time properly has been devoted to the state budget and to Covid-19 relief. That leaves insufficient time for thoughtful consideration of H.926 and other non-essential bills.

Opportunity for meaningful public participation will be lost by taking Act 250 out of designated downtowns and neighborhoods. Act 250 now applies there only for larger projects. It is these very projects that benefit from Act 250’s comprehensive approach to the criteria. H.926 will rely instead on municipal permits and other state permits.

Environmental protections will be lost by relying on other state permits and zoning permits. Zoning is not required to consider many of the important issues addressed by Act 250. Other state permits cover only a few of the criteria and prevent meaningful public participation. Public participation in other state permits is limited to commenting after the state has negotiated terms with the developer and decided to issue the permit. Act 250 invites the public to shape the terms.

Zoning is not required to evaluate the Act 250 criteria of air quality; water quality; waste disposal, water conservation, water supply, soil erosion, scenic beauty, aesthetics, endangered species, and energy conservation. These criteria can be critical issues in designated neighborhoods. Many of these criteria are not covered by other state permits either. Additional criteria not required to be evaluated in designated downtowns include floodways, streams, and shorelines.

Opportunity for meaningful public participation will also be lost by a proposal to release some land from its Act 250 permit. Testimony by public parties often raised significant issues, resulting in conditions being placed in the permit. If the land is released from the permit, some permit conditions would be eliminated. Others would be transferred to a zoning permit. If that transfer were to occur, the connection between parties to the initial application and the conditions would be broken. Parties would not be notified of future amendments to the zoning permit and would lose any chance to retain the conditions.  And municipalities lack the resources to enforce violations of their zoning permits.

Land would be eligible for release if:

The permit holder is in compliance with the permit, and

The use is no longer development or subdivision under Act 250, and

The use has changed; or the municipality adopted permanent zoning and subdivision after the permit was issued; or the land is now in a designated downtown or neighborhood.

The process for releasing land from a permit would be neither short nor fast. The permit holder would ask the district commission to release the land. The district commission would review the permit: its findings, conclusions, and conditions, including all amendments and all court proceedings. It would get updated information from the applicant and the other parties. It would make new findings and conclusions for the present situation. This would be essentially the same amount of work as went into the original permit.

The Legislature failed to perform due diligence on releasing land. It received no testimony on, and does not know, how many permits might be eligible for review. They do not know whether the district commissions have the capacity to handle these reviews.

The state does not monitor Act 250 permits for compliance after they are issued. So the Legislature has no idea how many permittees are out of compliance. No idea how many permits might be eligible by changed definitions of development and subdivision; how many changes of use have occurred; how many permits were issued before adoption of permanent zoning and subdivision; or how many permits were issued in designated downtowns and neighborhoods. Making this change without understanding the consequences is imprudent.

In conclusion, H.926 will reduce the ability for meaningful public participation. H.926 will reduce environmental protection in designated downtowns and neighborhoods without increasing protections elsewhere. I believe that Act 250 should retain its limited jurisdiction in designated downtowns and neighborhoods. I believe that release of land from Act 250 permits needs more consideration than can be given in this technologically limited summer session. This is not the right time to rush H.926 through the Senate.

Thomas Weiss, Montpelier

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