Spring 2009 - #1. Act 250: A Suggestion for Reform.

Author:by Jon T. Anderson, Esq.
 
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Vermont Bar Journal

2009.

Spring 2009 - #1.

Act 250: A Suggestion for Reform

THE VERMONT BAR JOURNAL Volume 35, No. 1

SPRING 2000Act 250: A Suggestion for Reformby Jon T. Anderson, Esq.Act 250 turns forty years old on April 4, 2010, and in many ways, the law has been good for Vermont. If nothing else, Act 250's regulation of aesthetics has resulted in our developed areas looking better on average than developed areas in most other states.

Nevertheless, like all forty-year-olds, Act 250 is imperfect, and it becomes less vital as time passes. Since 1970, many towns have implemented more sophisticated land use planning and regulatory regimes. The Vermont Agency of Natural Resources has more capacity to regulate the technical aspects of environmental issues. As Act 250 is usually administered, the permit review process goes more slowly than is necessary. There is increasing pressure to alter at least some of the review criteria, and efforts to limit Act 250 jurisdiction are increasingly frequent.

Wholesale reform of Act 250 is likely impossible. Instead, we should focus on incremental improvement. One area for improvement originates in the increasing difficulty in determining whether projects that lack an Act 250 permit are indeed subject to Act 250 jurisdiction. This problem can be addressed either by adopting a general amnesty program, as has been done for water and waste water permitting, or by way of a statute of limitations approach, as was done for municipal permits in the wake of Bianchi v. Lorenz.(fn1)

In general, permitting issues must be considered in every real estate transaction. Differentiating between title and non-title issues is usually worthwhile, although the distinction is not universally accepted. A title issue is considered to be an issue that can be identified simply by reviewing public records. If a question requires field investigation of any kind for its resolution, it is not usually a title issue. For example, whether a building is located as shown on any approved plan is not a title issue because field research is required. Whether permits were required for subdivision or development, however, is typically a title issue.

Whether or not a permitting issue is a title matter, permitting issues must be investigated. Even if a permitting problem does not equate to a title defect, clients take little comfort in knowing that a serious permitting issue was found after a careful analysis not to be a title defect. Rather, the difference is the amount of flexibility a lawyer has for dealing with the...

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