Defining the Limits of Act 250 Jurisdiction

• Jurisdiction: Vermont,United States
• Citation: Vol. 2005 No. 06
• Publication year: 2005

Vermont Bar Journal 2005.

June 2005 - #1. Defining the Limits of Act 250 Jurisdiction

Vermont Bar Journal - June 2005

Defining the Limits of Act 250 Jurisdiction

Jon T. Anderson, Esq.

Act 250 provides many benefits to Vermont. It is, however, designed to review only certain projects - generally ones anticipated to have the greatest en-vironmental impact and those subject to less municipal level review. We overload the system by unnecessarily subjecting projects to Act 250 review. In addition, as lawyers, we represent clients less than well by unnecessarily incurring the extra expense, time, and risk associated with an Act 250 filing. This article describes the four most common ways to trigger Act 250 jurisdiction.1 Act 250 jurisdiction can often be restricted by paying careful attention to these triggers.

Four Common Ways to Trigger Act 250 Jurisdiction

1. Commercial or Industrial Projects on a Sufficient Amount of Land

Construction of a commercial or in-dustrial project on more than one acre is subject to Act 250 jurisdiction until a town adopts both zoning and subdivision bylaws. Thereafter, only commercial or industrial projects constructed on parcels of land comprising more than ten acres of land are subject to Act 250 jurisdiction.2

Almost anything but traditional farms, houses, and projects by governments are commercial or industrial projects. For ex-ample, construction of a classroom/small dormitory complex by a not-for-profit cor-poration is a commercial project for pur-poses of Act 250 jurisdiction.3 So too are such farming related activities as spreading sludge,4 and construction of improvements to undertake crop dusting.5 The key ele-ments are the provision by non-govern-mental organizations of facilities, goods or services to others in exchange for a fee, donation, or other object having value.6

Home offices or businesses located in or at homes on sufficiently large parcels of land can be subject to Act 250 jurisdiction de-pending on their significance. In general, Act 250 is only concerned with the review of a "substantial" change, i.e. "any change in a [project] which may result in signifi-cant [measurable, observable] impact with respect to any Act 250 criteria."7 Such things as how frequently customers travel to the property, how many people work there, signage, and other changes in the appearance of the property are likely to be considered.

In determining jurisdiction for a proj-ect, all land "involved" in a project "owned or controlled" by the developer is counted even if it is non-contiguous.8 For example, if a commercial project is located on half an acre of land leased from a parcel com-prising more than ten acres, the project is subject to Act 250 jurisdiction...