By Mike Dunphy
Since 1970, Act 250 has sought to “protect and conserve the lands and the environment of the state of Vermont and insure that these public lands and environment are devoted to uses which are not detrimental to the public welfare and interests”—or so the text of the law evinces.
Key to administration of the law are nine district commissions that review development applications and issue decisions and land use permits, supported by nine district coordinators, one Act 250 specialist, and six technicians located in five regional offices, with the central office in Montpelier. Together, the commission members—appointed by the sitting governor—ensure proposed developments conform with the 10 criteria of the statute that cover water and air pollution, waste disposal, erosion, traffic, wildlife protection, aesthetics, and scenic and natural beauty, among other things.
For eight years, Ginny Callan from East Montpelier—perhaps best known as founder of the legendary Horn of the Moon Cafe in downtown Montpelier—has served as an alternate and vice chair on the commission in District 5, which covers Washington and Lamoille counties, and enjoyed an up-close-and-personal view of the action. When her tenure concluded in January, Callan took the opportunity to reflect on her experiences with the commission: where it excels and lags, how it can be improved, and whether the proposals to update the statute in Senate bill S.104 would achieve a better law for the people and businesses of Vermont.
Callan’s appointment to the board eight years ago came as a sort of happy accident. “I was working at the New England Grassroots Environment Fund,” she remembers, “Peter Shumlin had just been elected and was looking for names of people to be involved in Act 250, particularly women, minorities, and young people. I got an email asking for names, so I gave a few and thought, ‘Oh, I’ll throw my name on it, too.’ I did and got appointed.”
Joining the commission is no walk in the park, however. “There’s a big learning curve,” she notes. “You get trained, though, and the Natural Resources Board offers updates on the criteria.” The time required, and little remuneration, is not for everyone, however, especially those locked into multiple jobs, raising families, and struggles with income.
This inevitably results in a more limited pool of people interested in and available to become commissioners than the statute intended. “Are you attracting the low-income single mother who needs a babysitter to be able to go to the hearings? You are getting people who have some freedom in their life.” District 5, she notes, has made some efforts to mitigate the issue by holding hearings at night. “Most of the other districts hold their hearings during the day, which means working people…have to take a day off to attend a hearing. The public should be able to easily attend and participate in the process.”
On occasion, the commission did feel like an all boys club. “At one point I actually said something to the Natural Resources Board, noting that at the time ‘I was only woman reappointed to District 5. I hope if you’re going to appoint someone else, that it’s going to be a woman.’ But I’m only familiar really with District 5 and who I’ve seen at the training sessions.”
On efficiency and operation, however, Callan gives the commission high marks, nothing that despite the seemingly high hurdles of getting a permit, most applications pass through relatively quickly. “Often applicants will complain that this is a really lengthy and long process, and it’s expensive, but actually 94 percent of the cases get through the process and receive a permit in 72 days or so.”
Natural Resources Board data bear this out. In 2018, there were 404 Act 250 applications statewide, of which only 36 went to hearings. Forty-nine percent of the time, permits were issued in less than 30 days from the completed application and 73 percent within 60 days. In District 5 the rate and speed of approval is often even higher, with 94 percent issued in fewer than 60 days in 2017. Since December 2018, 33 permits have been issued in an average of 72 days.
But Callan does see a number of ways to improve the statute, many of which are addressed in S.104, now making the rounds in the legislature. “I like that they’re considering climate change and adding rules about greenhouse gas emissions and forest fragmentation, as well as dropping the elevation down to 2,000 feet from 2,500 with what’s not allowable for development.”
However, Callan does not support creating “enhanced designation” zones that would exempt downtown designated areas from Act 250 permitting. “I think it would be really bad not to have any hearing at all. It puts too much stress and power on the local boards, and not all towns have the right planning commissions and boards. It needs that secondary review process.”
One issue that Callan thinks should be addressed in the bill (but is not) regards appeals. “Right now, when a permit is appealed, it’s de novo. So the whole case starts as if it had never been heard; it’s all reviewed as a new case. That’s really inefficient and costly for the applicant and opponent to suddenly have to start bringing your witnesses in all over again in front of a whole new group of people. It totally disenfranchises the local commission’s decision review process. It’s like saying this doesn’t count.”
Callan, however, does not see any need to change rules on acquiring party status to appeal decisions, which has been the claimed bane of developers like Gene Beaudoin, who has developed Shaw’s grocery stores in Colchester and Berlin. In a Jan. 9 article in the Burlington Free Press, he bemoaned the ease of appeals, saying a developer can spend $700,000 on the permitting process and risk losing it if a neighbor decides they don’t like the project.
These concerns are overblown according to Callen, first, because appeals are much rarer than the occasional media attention on a single case might indicate, and, second, the need for a “particularized interest,” which “must be specific and particular to the individual,” according to the statute. “It has to be more than just I don’t like looking at that building.” In fact, it’s even gotten tougher. “It used to be that a citizens group like the Vermont Natural Resource Council or the Conservation Law Foundation could say we have members in their town and we want party status on this case and they would get it. They can’t get that now without including an abutter, which at times can be a big hurdle to the democratic process.”
Nonetheless, Callan emphatically believes the public is an integral part of Act 250 and needs to remain actively engaged and welcome in the process, not shut out by new restrictions. “I think it’s really important that people have a voice.”