Fall 2009-#16. RUMINATIONS.

Author:By Paul S. Gillies, Esq.
 
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Vermont Bar Journal

2009.

Fall 2009-#16.

RUMINATIONS

THE VERMONT BAR JOURNALVolume 35, No. 3Fall 2009RUMINATIONS The Evolution of Act 250: From Birth to Middle AgeBy Paul S. Gillies, Esq.Forty years ago there was Woodstock, Viet Nam, the moon landing, the Manson murders, and Act 250. The world was tilting in new directions, and there was a crisis in Vermont. Fourteen hundred second homes were planned for Stratton, and Stratton had no subdivision regulations, nor for that matter did Vermont.(fn1) If all nineteen of the vacation home subdivisions planned for Dover in 1969 were built, its population would have increased from 370 to 16,000 in a short number of years.(fn2)

Governor Deane Davis heard the concerns of southern Vermonters, and took a tour, led by Windham Regional Planner Bill Schmidt in the spring of 1969, and what he saw infuriated him. Jim Jeffords, who was Vermont's Attorney General at the time, later wrote, Governor Davis saw raw sewage "bubbling out of the ground next to some quick-built ski chalets," and that was enough for him.(fn3)

Davis is such a charismatic fgure in Vermont history. The Governor single-handedly stopped the Stratton development by calling up the president of the International Paper Company and asking him to abandon the project- and he did. Even though Vermont had virtually no formal control mechanism to condition or prevent the development, in 1969 a little gubernatorial persuasion was enough.(fn4) But everyone saw this as a close call. Something had to be done.

The governor held a conference, and appointed a commission, headed by Arthur Gibb, a retired banker. The Gibb Commission issued two reports, which formed the template for the legislation that ensued.(fn5) The legislature passed the law that spring.(fn6)

The story of how Act 250 came to be, and what happened to it in the forty years that followed, engages the entire modern history of Vermont. Leading up to its passage were changes that presaged a greater state role in regulating development, including the building of the Interstates, reapportionment, and the early environmental initiatives, including the billboard law (1968), the bottle return law (1953-1955, 1972), and Section 248 reviews of new utility lines (1969), among others.

Over the next four decades following the enactment of Act 250, it has endured, in spite of its setbacks, which included the loss (fn7)of the state land use plan, the judicial voiding of a few of its administrative rules, accusations of its toxic effect on economic development, the refusal to confrm the reappointments of the board chair and two members in 1994, at least two major permit reform initiatives, the abolishment of the board and transfer of its appellate review responsibility to the environmental court, and efforts to promote land use, economic and social policies by the creation of new exemptions.

Every year there are demands to make the process easier, faster, and more predictable. Today, Act 250 looks forty. It has a maturity and an understanding of its limits. But sometimes, its supporters look around and wonder if Act 250 retains the vision and the passion it enjoyed at frst. Every decade is different; every biennium brings new challenges, new ideas. The history of Act 250 is best told by looking at what was done with it, legislatively, judicially, and administratively, over its time. Each branch has had its impact in shaping Act 250.

Sometimes the relations of the three branches sound like a David Mamet flm script, with long pauses, half-fnished thoughts, and curious rhythms and tonal changes. Although sired by the executive and delivered by the legislature, Act 250 has its greatest ally in the Supreme Court. To date the Supreme Court has never reversed the board for any fnding of fact. The legislature is fckle. It is at one time generous, at another reactionary and timid. So with the executive. No governor has dared to criticize Act 250's values. But there have been uncomfortable feelings. Justice William Hill used to say that we must never forget how fragile government really is. When it works, it fulflls our trust; when it goes awry, it can do great harm. That is the tension. Act 250 depended on a strong Environmental Board. The legislature gave it powers to enact rules that pushed the envelope of traditional administrative law by deferring to the board decisions on party status and jurisdiction usually reserved for the popular branch of government. This led to inevitable collisions among the branches.

There are about one hundred decisions of the Vermont Supreme Court that constitute the canon of state land use law in Vermont, in its frst forty years. Most involve questions of jurisdiction- whether a development is governed by Act 250 or not-or standing-what rights others have to challenge the development. Thirty decisions are reversals, where the Court has criticized the board (or in some cases the superior court or later the environmental court), for its zeal on matters of jurisdiction. The rest of the decisions are affrmations of the work of the board, many of them supporting new ideas adopted by the board in the conduct of its reviews. This is what makes Act 250 so interesting-this synthesis of ideas about jurisdiction, the continuing concern for procedure, the confrontation of values and resolution of disputes .(fn8)

Act 250 has served as the arena where major battles were fought over residential subdivisions, the growth of ski areas, the expansion or reopening of gravel pits, bear habitats, deeryards, cell towers, big box retail establishments, and agricultural soils. While the crisis began in the southern counties, in the mountains, the battle lines soon moved northerly to Burlington, Williston, and eventually St. Albans, where this fall the environmental court's hearings on the Wal-Mart store have recently ended.

The passage of Act 250, according to Chief Judge James Oakes, "represented the culmination of an effort to create a process that would subject subdivisions and other large developments in Vermont to administrative review so as to ensure economic growth without environmental catastrophe."(fn9) Its purpose was to protect "Vermont's relatively unspoiled environment."(fn10) It was, as Chief Justice Albert Barney stated, "a philosophic compromise between protecting and controlling the State's lands and environment, and avoiding an administrative nightmare."(fn11) It was never intended to cover every land-use change, "or to interfere with local land- use decisions, except where substantial changes in land use implicate values of state concern."(fn12) Sometimes, as Chief Justice Jeffrey Amestoy described it, the process can be an "extraordinary procedural maze."(fn13)

Act 250's strongest armor has been the deference the Supreme Court has shown Environmental Board decisions, with regard to both facts and the interpretation of the laws and rules governing the system. This is not mere deference-it is "high level" deference.(fn14) Infused with a presumption of validity, requiring clear and convincing evidence to overcome board fndings on appeal, only an extreme abuse of discretion, a failure to follow its own rules, or gross violence to the plain language of the statute can disengage the decisions of the board.(fn15) Attempts to justify avoidance of jurisdiction based on statements made by government offcials, including district coordinators, always seem to fail.(fn16) Although uncertainty in construing land use regulations traditionally defaults to the property owner, that trope is seldom used in more recent Supreme Court rulings.(fn17) Perhaps this is due to a lessening of uncertainty in Act 250 over the years. It remains to be seen whether the environmental court will enjoy the same latitude of deference as the Environmental Board did.

Act 250 has survived four decades. The law has staying power-when all around it government has changed, Act 250 has retained its core values and standards. Act 250 is not statewide zoning. Zoning is practical. It says how far, how big, what use is appropriate. Act 250 asks different questions. Its criteria are more relative, and aspirational, as shown by the use of the words "unreasonable," "undue adverse," or "materially interfere."(fn18) No one can deny the audacity of its enactment. The legislature had been bold enough to challenge what Deane Davis called "one of the most fundamental rights of Vermonters a the right to use one's own land as one saw ft."(fn19) The 1970 legislature, Governor Davis, and many who followed him saw a greater right in the protection of Vermont lands and waters, a public interest in traditionally private matters.

The First Decade (1970-1980): Kick Starting

After Act 250 took effect, on April 4, 1970, Governor Davis appointed the frst Environmental Board, with Benjamin Partridge, Jr., as chair.(fn20) He also appointed the frst district commissions, and the work of transforming an idea into a program began. The board adopted its interim rules on June 1, 1970, less than two months after Act 250 became law. As with other board rules that followed, the heart of these regulations was the defnitions. At frst the choices were conservative, largely parroting the statute, but in several instances the rules reached beyond the statute to do what rules ought to do-fll in the gaps between the statute and practical implementation. Just how far the board could go became one of the major themes in challenges to its...

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