On March 30, 2022

Senate supports proposed changes to Act 250

By Emma Cotton/VTDigger

Vermont is experiencing parallel crises: The state needs more development as Vermonters struggle to find and afford housing, and development is also increasingly encroaching on forests and habitats that are important for ensuring the state’s resilience to climate change.

Sen. Chris Bray, D-Addison, said lawmakers sought to address both problems in S.234, which proposes changes to Vermont’s sweeping land use law and passed the state Senate on a preliminary vote on Thursday, March 24, then final vote on Friday.

“We’re all keenly aware that there’s a housing shortage in Vermont, and secondly, that we are losing green space at a rate of about 15,000 acres per year,” Bray, who chairs the Committee on Natural Resources and Energy, said in remarks about the bill on the Senate floor.

Lawmakers are proposing exemptions so that more priority housing won’t need a permit to abide by Act 250, which was passed in 1970 to control development. The law applies to commercial and industrial projects, and can pose a barrier to new housing.

If passed, S.234 also would create Act 250 jurisdiction in areas where it doesn’t exist now.

In an era where the housing market is increasingly tight, legislators say the changes are necessary.

Smart growth

The bill would tweak the current law to make it easier for municipalities to access incentives under Act 250. It would allow some development in flood hazard areas to be included in “neighborhood development areas,” where developers can gain permitting and tax incentives when building certain types of housing. The areas would have to be ready for infill development.

The measure also would nix a standing requirement that neighborhood development areas must have municipal sewer infrastructure or an alternative community wastewater system.  “It can take years for a town to build out a sewer system, for instance,” Bray told lawmakers, “whereas, if you offer a developer the opportunity to develop suitable waste treatment sites, you can facilitate the development of housing.”

A municipality would be eligible to host a neighborhood development area if its bylaws in the area allow four dwelling units of any kind per acre, except accessory dwelling units.

The bill would expand the definition of “priority housing,” which is exempt from Act 250, by repealing a clause that requires permits in cases where developments contained 25 or more housing units and were located in a town with 3,000 people or less. Now, the law would apply to projects with more than 50 housing units.

Act 250 wouldn’t apply to priority housing projects funded by the American Rescue Plan Act if 80% of the units are considered affordable for at least 30 years.

Seeking to reduce burdens on applicants, the bill says that if a municipality doesn’t weigh in on a project within 90 days, “the application will be presumed not to have an unreasonable burden on educational, municipal, or governmental services.”

New jurisdiction

The bill also includes stronger environmental protections. It would require developers to show that their project “will not result in an undue adverse impact on forest blocks, connecting habitat, or rare and irreplaceable natural areas.” In those cases, the developer would be required to minimize any harmful impacts.

If the bill passes, Act 250 would cover the creation of some new roads. Anyone attempting to construct a road or driveway would need an Act 250 permit if the road was longer than 800 feet — or if multiple roads, combined, were greater than 2,000 feet — and if the road provided access to a parcel of land one acre or larger.

The bill also clarifies confusion surrounding the triggers for Act 250 in towns with no zoning or subdivision regulations, resulting from a recent Supreme Court decision that was later reconsidered. In those towns, the law would apply to anyone looking to place a commercial or industrial project on a parcel of land that is one acre or larger in size — in line with the way Act 250 has been administered in the past.

‘Good balance’

Sen. Alison Clarkson, D-Windsor, told senators that she supported the bill, citing the incentives for smart growth in downtowns and the environmental protections for forests.

“This bill, for me, represents a very good balance,” she said.

In light of Vermont’s housing crisis, other lawmakers don’t want to see Act 250 cover new territory. Several senators, particularly those from the rural Northeastern part of the state, voiced concerns about the bill’s provision that adds jurisdiction to new roads greater than 800 feet in length.

“I am concerned that this bill, as of right now, is going to make housing more difficult to build at a time in which we find housing to be among the most critical shortages that we have to deal with,” said Sen. Randy Brock, R-Franklin.

The new jurisdiction related to roads could cause single-family homeowners to “become entangled in the tentacles of Act 250,” Brock said.

Bray pushed back, pointing to the expanded exemptions that would occur under the bill for priority housing projects.

The Vermont Natural Resources Council, which often focuses on issues related to Act 250, issued a statement applauding the Senate’s support of the bill on Thursday afternoon.

“We must address the current housing crisis and other pressing state needs with smart growth development that simultaneously protects our invaluable rural forests and working lands,” Kati Gallagher, the organization’s sustainable communities program director, said in a statement. “The pairing of these priorities is becoming increasingly important as Vermont’s housing shortage is exacerbated due to in-migration since Covid, not to mention the certainty of increased migration to Vermont due to climate change.”

Meanwhile, the House passed a different bill last week that would modify the structure of the Natural Resources Board, which oversees Act 250.

Lawmakers in the Senate passed S.234 on Friday, March 25. Now it moves on to be reviewed by the lawmakers in the House.

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