Commentary: The Coming Report on Expanding Act 250 (January, 2019)

by John McClaughry

Two years ago the legislature created a six-member commission to assess the fifty years of experience with Vermont’s Land Use Control Act and “assess, to the extent feasible, the positive and negative outcomes of Act 250’s implementation from 1970 to 2017.” The commission was charged with developing legislation for consideration in 2019.

Here’s a bit of background on the enactment of Act 250. Disclosure: I am probably the only member of the 1970 legislature still active in our state’s public life. I was active in the debate then and afterwards, offered the only successful floor amendment, and cheerfully voted yes on passage.

In 1969, practically everybody shared Gov. Deane Davis’s alarm at the threat of developers launching huge projects – notably in Wilmington and Dover – that would completely overrun the capacities of local governments to deal with water, sewer, town roads, traffic, police and fire protection, and schools.

The 1968 municipal planning and zoning act gave towns considerable authority to deal with these issues, but few had familiarity with the tools. Thus Act 250 was enacted to require developers of larger projects to obtain permits by showing district environmental commissions that their projects complied with all ten ill-defined criteria (“no adverse impact”).

There was one notable interest group opposed to pollution and oversized development, but also determined to make Vermont over into their Perfect Little State. That group was the Vermont Natural Resources Council (VNRC). Its lobbyist Jonathan Brownell (later its chairman) was ever present in the State House and can rightly claim to have been co-author of the act.

Brownell, a Yale-educated New York lawyer who moved to Vermont in the mid-1960s, was firmly committed to this idea: just as municipal zoning bylaws must be based on an adopted town plan, so Act 250’s development permits must be based on a State Land Use Plan, approved by the legislature.

This contention, which proved to be false, triggered an enormous and largely unnecessary six-year political battle. When the smoke had cleared, the legislature had killed three progressively weaker State Land Use Plans, Plan champion Democratic Gov. Tom Salmon lost an otherwise winnable U.S. Senate race (52-48), and in 1984 the requirement that there even be such a Plan was quietly repealed.

Despite the rejection of its yearned-for Plan –development would be permitted only in its correct place as mandated by the Plan – the VNRC persisted in another belief that inspired vehement opposition. That was the belief that the idea of private property was nothing more than an obsolete relic of Dark Age selfishness and a needlessly annoying nuisance to public-spirited planners.

The Vermont Constitution acknowledges that private property may be taken for the use of the public, but if so, the owner must receive just compensation – “an equivalent in money”. The State can surely prohibit the use of private property that causes pollution or injuries to others. But what if oppressive state regulation – not for controlling pollution, but for carrying out somebody’s master plan for the Perfect Little State – strips a property owner of any beneficial use?

That’s called a “regulatory taking”. VNRC held a well-attended conference on how far regulation could go to take property value without becoming a compensable regulatory taking. This disdain for a Vermonter’s right to make beneficial use of his or her property in land persists to this day. Needless to say, it incites vigorous resistance.

As the 50th anniversary of Act 250 approached, VNRC became the driving force for a commission to revise the Act to move Vermont on toward that Perfect Little State. As introduced, its legislation specifically guaranteed that VNRC would have a seat on a public commission. The legislature, however, decided to create a six-member legislative commission. VNRC had to be content to serve on an advisory panel with nine other land use control enthusiasts, along with five state government officials.

The lone “business representative” on the advisory panel is a (admittedly very able) solar farm developer who previously chaired Gov. Douglas’s Commission on Climate Change, that declared that  reducing greenhouse gas emissions is “the major challenge facing Vermonters in years to come.”

It’s transparently clear that the driving theme of the commission’s recommendations will be state regulation of as much land-related activity as can be swept under Act 250, to assure that our march to become the Perfect Little Climate Conscious State continues unabated.

I’ll have more on the commission report when it’s released.

John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).

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