What ever happened to Act 250?
Four years ago, Vermont’s Environmental Board was the focus of an intense, sometimes angry debate over whether economic growth was being impeded by highly restrictive interpretations of Act 250, the state’s main development-review law.
Today, passions on the issue have noticeably cooled, and the E-Board is able to conduct its business without constant controversy. It appears that a delicate balance has been restored between the often-competing considerations of environmental protection and economic development.
What accounts for this turnaround? And is the current calm reflective of only a temporary truce or an enduring change in attitudes and interests?
All involved parties agree that John Ewing’s tenure as E-Board chairman was a key factor in reducing tensions and in reviving the morale of the panel’s professional staff.
The former bank president took charge of the nine-member board early in 1995 following months of turmoil. Three members of the panel, including its previous chair, had been denied reappointment by the Vermont Senate in the course of a rancorous review that focused not only on the individuals’ performances but also on the E-Board’s overall discharge of its duties. The E-Board serves as the appeals forum for Act 250 permit decisions rendered by the District Environmental Commissions that cover specific parts of the state.
Senate Republicans, then in the majority, had argued that the E-Board was expanding its jurisdiction beyond limits envisioned in Act 250. Complaints of inefficiency and unresponsiveness were also voiced during the Senate debate. And underlying these charges was the belief shared by many Republicans that the E-Board harbored an ideological hostility toward business interests.
Governor Howard Dean rejected that claim, defended the record of the three nominees, and scored political points by depicting Senate Republicans as having behaved in an unreasonable and uncivil fashion. At the same time, some Democrats did acknowledge that the E-Board was in need of administrative reforms and that certain provisions of Act 250 should perhaps be interpreted with greater flexibility.
Ewing succeeded in streamlining the board’s operations and in dispelling the disarray that prevailed among staffers at the time of his takeover.
Partisans on both sides generally agree that he also infused the panel with a more conciliatory, less adversarial attitude.
But some environmentalists maintain that Ewing went too far in his efforts to placate developers, while a few business leaders argue that the E-Board still acts as a burden on Vermont’s economy.
Criticism of Act 250 and its implementation is noticeably muted today in comparison with the uproar of previous years, says Richard Brooks, a Vermont Law School professor and longtime analyst of the state’s pioneering land-use statute.
“But even when the complaints were loudest,” Brooks adds, “the data just didn’t support them.” A few highly visible cases generated fierce controversy in the early 1990s, obscuring the E-Board’s generally even-handed performance, Brooks says.
He does credit Ewing with “bringing a greater sense of balance to the procedure, particularly as perceived by the business community.”
Kevin Dorn, head of the Homebuilders Association of Northern Vermont, says, “An attitudinal change occurred on the E-Board” after Ewing replaced Elizabeth Courtney as its chair. With his more “judicial approach,” Ewing made clear that the panel’s purpose was “to review projects, not to stop projects,” Dorn adds.
Ewing himself, now leading a statewide sprawl-containment initiative, perceives “much more contentment with the process” among elected officials as well as the advocates who actually argue cases before the board. “I believe the business community understands that our system is as efficient and as objective as possible for a law as complicated as Act 250.”
Not everyone admires Ewing’s performance, however.
Some environmentalists that business interests are now less antagonistic toward the E-Board precisely because Ewing steered it in a more pro-development direction.
“He tried to calm down the business community,” says Stephen Holmes, policy director for the Vermont Natural Resources Council, “and he went too far in responding to their objections. I don’t think Act 250 is being implemented as aggressively as it was in the past. And that’s a direct result of all the fire that was directed at the E-Board a few years ago.” In Holmes’ view, those complaints by developers and their Republican allies were largely without merit. “There was never anything wrong with Act 250 to begin with,” he says.
VNRC in fact wants the law strengthened to enable the District Commissions and the Environmental Board to respond effectively to new challenges.
Holmes’ organization is lobbying for a “cumulative review” provision that would require consideration of whether a specific proposal will have effects beyond its immediate area. He points to VNRC’s involvement in Stratton Mountain’s master-planning process, arguing that this resort’s expansion must be considered in relation to construction plans at other ski areas in southern and central Vermont, including Haystack, Okemo, Mt Snow and Killington.
Calls for changes in Act 250 also can be heard on the other side of the divide, where there is likewise a certain wariness concerning the E-Board’s intentions under Ewing’s successor.
Chuck Nichols, director for environmental issues at the state Chamber of Commerce, argues that the permitting process is still in need of substantive changes.
“We’ve wanted to get rid of duplicative review,” Nichols says, contending that the District Commissions needlessly examine some of the same development impacts analyzed by the Agency of Natural Resources in its own assessments of proposed projects. The Chamber is not actively lobbying for such reforms at present, however, due to what Nichols describes as the “highly unfavorable” political makeup of the State Legislature.
Business groups also suspect that the E-Board may be angling to broaden the scope of its reviews to encompass any “secondary growth” that a particular project could spawn. Warnings of such a possibility were sounded both by Nichols and by Curtis Carpenter, a lobbyist for the Associated Industries of Vermont.
At issue is a draft report recently circulated by the Environmental Board with the aim of eliciting public comment. The report is focused on how the state’s school funding reform law may affect project reviewers’ analysis of the educational services criterion of Act 250. The shift in school financing sources brought about by Act 60 may affect interpretations of secondary growth, explains current E-Board chair Marcy Harding.
She notes that the issue of spinoff development was incorporated into reviews of the proposed Wal-Mart in St Albans and is currently being weighed as part of the permitting process for the Husky Injection Molding Systems factory in Milton.
The draft report is only beginning to be evaluated in light of the public comments it prompted, Harding cautions. “We’re a long way from completion.” Harding declares, moreover, that she is “thoroughly committed” to the administrative reforms introduced during Ewing’s tenure. “We very much intend to proceed in that spirit.”
The board continues to expand its outreach to Vermonters, Harding says, citing in particular the “E-Notes” that are already available in a bound version and that will soon be posted on the board’s Web site. The term refers to an annotated and topic-indexed compilation of legal points contained in all E-Board decisions since 1970.
Customer-satisfaction surveys are being conducted among parties to cases that come before her panel, Harding further reports. The results so far are “highly favorable,” she says. To Harding, that’s an indication of the E-Board’s ongoing commitment to the timely and responsive service that Ewing had stressed.
Working closely with the District Commissions and with the E-Board’s staff, Ewing introduced a series of procedural revisions and other initiatives which eliminated a backlog of about 30 cases and led to sustained improvements in efficiency.
Structural staffing modifications included the appointment of an executive director to oversee the District Commissions and a merger of the E-Board’s legal unit with one handling water resource issues. One staff attorney is now assigned to provide same-day legal advice on questions raised by District Commissions.
These regional bodies have themselves “always been operating at a high level of efficiency,” says executive director Michael Zahner. Local commissioners nevertheless now receive more extensive training as part of the reform effort undertaken by Ewing.
New performance standards concerning E-Board decision-making were adopted as well. About 85 percent of all permit applications that come before the board are now processed in accordance with a new 120-day timetable, It formerly took as long as 12 months before final decisions were reached in certain cases.
There’s been no appreciable differences since the early 1970s in the annual percentage or applications denied by the E-Board, says Zahner, placing that figure at “less than 2 percent.”
But a significantly higher percentage of permit applications are now categorized as “minor” — meaning that they are judged to have little potential impact in regard to Act 250’s 10 criteria and are thus handled administratively without public hearings. Projects deemed minor accounted for about 70 percent of all applications last year, Zahner estimates, as compared to an average for earlier years that was closer to 60 percent.
That particular change causes consternation among environmentalists, and is cited by legal professor Richard Brooks as one of many indications that, “The board has bent over backward to accommodate the business community.” Brooks bases this assessment on his review of all cases that came before the panel in the second half of 1997.
Other signs of extreme pliability include “the broad and permissive conditions” that reviewers have placed on certain project applications, Brooks says. He also detects increased reluctance on the part of the E-Board to assume jurisdiction over controversial proposals, such as the huge Vermont Egg Farm in Highgate.
Most telling of all, Brooks suggests, is the handling of the Husky project, which government officials regard, he says, as “a symbol of Vermont’s willingness to encourage development.” The author of a two-volume treatise of Act 250, he says he was “appalled” by the decision in the Husky case whereby several Act 250 criteria “are not being reviewed but instead postponed to a later date.”
Various exemptions to the Act 250 process approved by the Legislature in recent years signify “a trend toward fragmentation of project reviews” and a “gradual eating away of the E-Board’s authority,” Brooks finds. He points to the partial separation from Act 250 of hazardous waste sites and the complete removal of agricultural developments from the law’s purview.
Brooks cautions that the business community should not necessarily be pleased by this trend. “A multiplication of bodies reviewing projects could be harmful” because of the complications and uncertainties it may introduce, he says.
The future of Act 250 — including perceptions of how fairly it is being implemented — will be shaped by a much larger set of concerns, according to some administrators and advocates.
“When economic conditions are good, you hear less moaning about Act 250 and the Environmental Board,” says VNRC’s Stephen Holmes. “During a time of economic downturn, a lot of people in the business community say Act 250 is to blame for the troubles.”
E-Board director Michael Zahner offers a somewhat similar view. “We have a comparatively strong economy now,” he notes, “so there’s less frustration, more of a sense of opportunity.”
A record $800 million worth of Act 250 applications were filed last year, Zahner reports. That’s more than double the previous highest yearly sum, although Husky alone accounted for almost half of the $800 million total for 1997.
“That pace can’t possibly be sustained in the coming years,” Zahner observes. One likely reason — apart from the absence of the Husky factor — will be economic downturn, which, history teaches, must again strike Vermont at some point, even if current indicators put it several years off. And if the theory concerning the economy’s influence holds true, the E-Board can then expect to become once again a focus of heated controversy.
Copyright Boutin-McQuiston, Inc. Jun 01, 1998
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