Saturday, December 15, 2001
The Bennington Banner

Scrap Act 250 permit process, save the mission

Staff Writer

BENNINGTON - Gubernatorial hopeful Cornelius "Con" Hogan said Friday he'd like to gut Act 250, keeping its goals in place but scrapping the current permitting process.

He said he agrees wholeheartedly with the goals of Act 250 -- Vermont's land use law -- to protect and preserve Vermont's environment.

"Vermont's environment should be second to none," he said in a Banner interview Friday afternoon, calling it the top business asset for Vermont.

He'd like to "create something that captures the ideals (of Act 250), and makes it more predictable," he said.

Businesses fighting with environmental interests doesn't make sense, Hogan said. They "both want the same thing."

Hogan touted his ability to bring people together to find common ground. That may be helpful in working on streamlining Act 250, he said.

"There's common ground to be found in all these debates," Hogan said.

He said these fights, including the one going on in Bennington about the Mount Anthony Union Middle School project, is "debilitating and expensive."

He called ambushes at the end of the permitting process inappropriate.

"That's killing us," he said.

Although he's a Republican, and agrees with basic Republican principles of individual rights and economic thrift, Hogan said he has not been active in the party and that has not endeared him to party stalwarts. He faces Vermont Treasurer James Douglas in the primary next year.

Also running for party nominations are Democrat Lt. Gov. Doug Racine and Progressive Anthony Pollina. Current Gov. Howard Dean, who has held the position for a decade, is not running again, and U.S. Congressman Bernie Sanders, I-Vt., said he will not run for governor this time.

Hogan said independent voters have become an important component of the political landscape in Vermont, and said that's the reason he has opposed a push to close primaries to individual parties.

"If you want to sell something, you reach out to more people," he said.

This is the first time Hogan has run for public office.

The Vermont Constitution says you have to live in Vermont for four years in order to run for governor, said Hogan.

"Well, I've done that and then some," Hogan said of his more than 25 years in the state.

He said he doesn't have a long-term fund-raising base and a long list of promises to keep. And he doesn't "have to" win, he said: He has no intention of using the governor's position as a stepping stone for higher office as others do.

"I'm at the point I want to give something back to the state," he said. "There's something really special here."

He called a growing telecommunications infrastructure the key to keeping Vermont's best and brightest in the state.

"We're sitting in the middle of 65 million people" in the Northeast, he said, from Montreal to New York City. "I think the best-and-brightest curve is about to change."

He used the example of his son, who does architectural design for high-end construction projects. He has moved back to Plainfield, his hometown, and uses a high-speed communications line to work on his computer at home, and makes a "Boston salary."

Dean's e-mails questioned

November 12, 2001

By SUSAN SMALLHEER Southern Vermont Bureau

LUDLOW — An opponent of Okemo Mountain Resort’s expansion plans said Sunday he would do “whatever it takes” to get copies of e-mail correspondence between Gov. Howard Dean and Okemo resort owner Diane Mueller about the resort’s problems with Act 250.

Peter Berg, vice president of Mount Holly Mountain Watch, said he had been rejected already by the governor’s office with his initial request for a copy of the e-mail. The governor mentioned the correspondence earlier this month during a dinner tribute to Mueller, who was named Vermont Chamber of Commerce Citizen of the Year.

According to a letter from David M. Rocchio, legal counsel to Dean, the governor doesn’t use a computer in his state office, doesn’t have or use a state e-mail account there, and thus doesn’t have to share such correspondence.

Dean does have an e-mail account at his home, but Rocchio said the governor had already erased the Mueller e-mail and his response.

“The Governor does not save either e-mail sent to or from his computer at home,” Rocchio wrote.

Rocchio wrote that he had reviewed the governor’s files and “found no documents relating to the Muellers or Okemo responsive to your request.”

Berg had asked for any correspondence between the governor and Tim and Diane Mueller regarding Okemo Mountain and Act 250, as well as permits and appeals.

Berg said Diane Mueller’s critique of Act 250 amounted to “talking to the person who appoints the judge hearing your lawsuit.”

Dean, apparently unaware that a reporter was covering the event Nov. 2, told the group of more than 100 statewide business leaders, that “Act 250 is terrible.” When questioned about it as he was leaving, the governor said he was only joking.

At the same time Dean told the group he and Mueller, who is vice-chairwoman of the state Board of Education, had exchanged e-mails about Act 250 and Okemo’s recent experience with it over its Jackson Gore development.

Dean said at the time that he had given Mueller his e-mail address, which he doesn’t ordinarily give out, because he had kept in contact with the state education board via e-mail over the selection process for the new education commissioner.

At the time, he joked that Mueller “sends a mean e-mail.” Mueller was apparently upset about the Act 250 problems and challenges facing Okemo’s $100 million Jackson Gore development.

But to Berg, it’s not a joke.

Berg said that Mount Holly Mountain Watch and Okemo are still involved in an appeal to the state Environmental Board and the local District 2 Environmental Commission over various aspects of Okemo’s expansion plans. In fact, Berg and Okemo were before the Environmental Board on Wednesday.

Berg had sent his request to inspect and photocopy all the pertinent documents last Monday, a day after a news story appeared about the Mueller dinner.

By Friday, he had a response by Rocchio, declining the request and inviting Berg to discuss the matter with him.

Berg said the communication was not covered under executive privilege or protected, and that he needed to know what was said. He said he was prepared to file a formal request for the governor’s computer’s hard drive since Dean obviously used the computer for government business despite it being at his home.

“I supported Howard for governor many times and the Muellers are Republicans and sent contributions against the Windsor County Democratic senators, including Dick McCormack, chairman of the Senate Natural Resources Committee. I’m not happy about what he did. … ‘Act 250 is terrible’? Diane Mueller is using covert means to accomplish her ends,” Berg said.

Dean has long been an admirer of the Muellers and supporter of Vermont’s ski industry. Dean appointed Diane Mueller to the state Board of Education and even tried to convince her to run as a Democrat for Windsor County Senate in 2000.

Berg said that Mueller was entitled to some communication with Dean, but not about cases under appeal before the Environmental Board.

“I have no hesitation taking it further,” he said, of the appeal process.

Special panel looks at changes to land-use law

November 3, 2001


The Associated Press

MONTPELIER, Vt. A panel of legislators, state officials developers and environmentalists began Friday to examine possible changes aimed at streamlining Vermont's Act 250 land-use review process.

The Land Use Permitting Process Interim Committee, which is to report its findings to the House and Senate Natural Resources committees by Jan. 15, agreed Friday to examine ways of eliminating redundancy in the permit process and make it more efficient while maintaining some public participation.

But the 13-member panel itself came under criticism over its makeup. The law creating the group called on the governor to appoint four of the members: one each representing environmentalists, cities and towns, businesses and the general public.

Gov. Howard Dean appointed ski area executives both to the business and general public slots, a move that some environmentalists said left the panel stacked in favor of developers.

“I find it laughable that a representative of Killington is the governor's appointee to represent the general public,” said Steve Holmes of the Vermont Natural Resources Council. “What I fear is that we're going to grease the process even more for businesses at the expense of citizens and at the expense of the environment.”

Carl Spangler, vice president of the American Skiing Co., which owns the Killington ski area, identified himself as representing the general public on a signup sheet at the meeting and in a statement early in the three-hour session.

Spangler appeared to agree on most issues with his fellow ski executive, Rob Apple of Stowe Mountain Resort, Dean's appointee to the business slot on the panel. Other members of the committee appeared to perceive them as allied.

Marcy Harding, chairwoman of the Environmental Board, directed one question to Apple and Spangler jointly: “Some of you who go through the permit process, Rob and Carl, I'd love to know what you think.”

Developers have complained for years that there are too many paths of appeal open to opposing neighbors of projects and environmental groups. Spangler said he shared that view, and that his goal was “minimizing the bites at the apple” for opponents and “the double and triple jeopardy” for developers.

Spangler later said he didn't want to cut the public out of the process. But he said appeals from initial rulings should be limited to one.

“Let's do it once, let everybody put on their case, so you don't do it multiple times,” he said in a telephone interview.

He also said, “You, know, I'm a member of the public.”

Holmes was not the only one criticizing Spangler's appointment as representative of the general public.

Committee member Sen. Richard McCormack, a Windsor County Democrat and chairman of the Senate Natural Resources Committee, said of Spangler, “Clearly he's representing the ski industry.” He said it “certainly would be as reasonable” to appoint Elizabeth Courtney, executive director of the Vermont Natural Resources Council, to represent the ski industry. “It really doesn't pass the straight-face test,” McCormack said.

The special panel's chairman, Natural Resources Secretary Scott Johnstone, said he wasn't troubled by the appointments made by his boss.

“I think everybody here is a Vermonter,” Johnstone said. “I think we're all going to do what we can to make the system work better and at the same time protect the environment.”

Environmentalists step up criticism; former chairman defends Harding

November 1, 2001

By DAVID GRAM The Associated Press

MONTPELIER — Environmentalists are stepping up their criticisms of Environmental Board Chairwoman Marcy Harding for her conduct at the board’s annual meeting last week, while her predecessor on Wednesday came to her defense.

Environmentalists and their lawyers had previously expressed dismay that the board heard a presentation at the annual meeting Friday from a cellular phone tower development company, without granting equal time to critics of the towers.

Now, Annette Smith, executive director of the group Vermonters for a Clean Environment, is complaining about what she said was a scolding delivered to her by Harding at the meeting over testimony Smith gave the board in a case involving a realignment of power lines in Danby.

Smith was testifying not as head of VCE, but as an expert witness for Harris Peel, owner of an art gallery near the power lines in question.

Smith said that Harding told her “she felt my reputation was at stake and that I was threatening the integrity of Act 250.”

In a letter to Gov. Howard Dean, Smith said, “I take issue with her (Harding’s) personal attack, questioning my credibility and attempting to intimidate me through her accusations and unfounded conclusions.”

Harding confirmed she had spoken with Smith, but denied making the specific comments Smith attributed to her. “She’s using different words than I did,” Harding said.

Harding said: “I do believe I said that by taking the stand she took in that case, that I felt it had the potential to affect her credibility. ... I let her know Friday that I was disappointed” in Smith’s testimony in the case.

David Grayck, a Montpelier lawyer who represents VCE but was not involved in the Peel case, said Harding’s remarks raised questions about whether Smith could get a fair hearing in front of the Environmental Board on issues that came up in the future.

“People now know that Marcy Harding has gone up to her and said ‘you have credibility issues.’ That’s not positive for Annette,” Grayck said.

Smith put it this way: “Anything that I’m involved in that may end up before the Environmental Board has been tainted. She told me I have no credibility.”

Harding said that “in retrospect, I wish I hadn’t said anything.”

But her predecessor, former board Chairman John Ewing, said he didn’t see a big problem.

“If the case was closed and the appeal period’s run, my understanding under the judicial rules, which basically the Environmental Board is covered by, is that it’s not inappropriate to have such conversations.”

The chairwoman of another of the state’s quasi-judicial boards said she would be more careful.

Catherine Frank of the Labor Relations Board said she did not want to issue criticisms and was speaking only for herself, but said, “I would never talk about a case before, during or after to the parties who are involved, not while I was still on the board.”

The Rutland Herald
Monday, October 29, 2001
Environmental Board criticized for cell tower meeting

October 29, 2001

By DAVID GRAM The Associated Press

MONTPELIER — Vermont’s Environmental Board is coming under fire for a presentation at its annual meeting Friday that critics say presented a one-sided picture of cellular phone tower development and may have violated state law.

The meeting, which included board members and staff as well as members of Vermont’s eight district environmental commissions, also featured a gag gift to a longtime board employee in which the joke was at the expense of lawyers who frequently represent environmental groups before the panel.

The session at Vermont Technical College in Randolph had as a main agenda item a presentation by Mollie Steiger, site acquisition manager for a major developer of cellular phone towers, Crown Castle International.

No one from the various groups that have questioned the health effects and aesthetics of cell tower development was listed on the agenda. Those groups and their lawyers are crying foul, saying the judges who hear their disputes went outside the hearing room and effectively took testimony from just one side.

Board Chairwoman Marcy Harding on Sunday at first defended Friday’s presentation, saying she did not believe it violated state law barring “ex parte communications,” those outside the formal legal process.

She later acknowledged that Steiger’s appearance, coupled with the spoof of the environmentalists’ lawyers, did not paint a good picture.

“It’s clear to me that the public is bothered by the overall picture,” she said. “I’m very sorry that it happened.”

Dennis Clancy, a Hyde Park resident who for more than three years has battled a cell tower he said would ruin a splendid view of Mount Mansfield, said he went to Friday’s meeting after learning a few days earlier that the presentation was planned.

Clancy said he and other environmentalists had been admonished at previous hearings by Harding not to try to contact her outside the hearing room, because such communications would be improper intrusions in the judicial process.

Clancy said Sunday he was “shocked that they could do this, have a developer come and give one-sided information outside of the hearing room. It’s something I can’t do.”

The board and commission members heard Steiger’s presentation despite warnings from private lawyers who practice before the board as early as Wednesday that it could violate a state law.

That law says “members of any agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact” with parties in the case or their representatives unless there is “notice and opportunity for all parties to participate.”

Michael Zahner, the board’s executive director, sent an e-mail to several people concerned about the matter in which he defended the board’s agenda.

“There will be no discussion of the merits of wireless technology or the merits of any individual provider, and, certainly, no discussion of any pending case,” he wrote. “Although they may be an applicant in the future, Crown Castle has no pending applications in Vermont.”

But others attending the meeting said Steiger did talk about “the merits of wireless technology,” saying more was needed. As for the merits of any individual provider, Crown Castle’s company slogan on its web site is “Shaping the Wireless World.” The board’s agenda item was labeled “Shaping the Wireless World in Vermont.”

And on Crown Castle having “no pending applications,” board critics said it’s not that simple. The Hyde Park cell tower being opposed by Clancy is being developed jointly by Verizon and some Lamoille County partners. On its web site, Crown Castle listed Verizon first in a list of companies that use its facilities. Clancy said he asked Steiger about her company’s relationship with Verizon and the reply was that they’re “partners.”

Harding said she was worried enough about those connections that she went back to her office after Friday’s meeting and checked the files to learn more about them. She said she continued to believe Crown Castle was not a current permit applicant.

Annette Smith of Danby, director of Vermonters for a Clean Environment, said she asked a board official on Wednesday for a chance to make a presentation at the meeting Friday and was told there wasn’t time. She and Clancy were allowed to speak briefly during a public comment period. Smith said they were made to feel unwelcome, and that Steiger spoke for nearly 90 minutes.

“It doesn’t compare,” said Clancy’s lawyer, Stephanie Kaplan. “Nobody from the public had an opportunity to prepare a presentation.”

Kaplan, a former executive director of the board, and one other lawyer who practices in front of board said they were also aggrieved by a joke made at their expense. During a lunchtime presentation to Zahner, who was observing his 20th anniversary working for the board, another official presented Zahner with a mock law book on “understanding Act 250,” allegedly written by Kaplan, Montpelier lawyer David Grayck and former board lawyer Aaron Adler. The presentation drew laughter from the crowd, people at the meeting said.

The official making the presentation was William Bartlett, executive officer of the Water Resources Board. That board on Thursday received an appeal by Smith’s group of a wastewater discharge permit granted for an OMYA Corp. project in Rutland County. Grayck — one of the lawyers spoofed — represents Smith’s group in the OMYA case.

Smith said she was greatly disturbed to hear people who would be sitting in judgment of her case “ridiculing my lawyer.”

Bartlett said Sunday he considered his remarks humorous and harmless, made “all in fun,” but that he now regretted them.

Zahner said Sunday that Adler, Grayck and Kaplan were all “highly respected” lawyers who had, in fact, written extensively on Act 250. He said the mock gift was not meant to be derogatory.

But Clancy said he, too, was disturbed to hear his lawyer, Kaplan, singled out for razzing.

“These people are supposed to be the representatives of the people of Vermont and here they are mocking our attorneys,” Clancy said.

Senate Oks Act 250 bill, higher fees

May 22, 2001

By DAVID MACE Vermont Press Bureau

MONTPELIER - The Vermont Senate on Monday passed bills to reform the Act 250 land use law and raise a number of state fees ranging from hunting licenses to municipal sewage permits.

Both measures passed unanimously on a day that also saw the Senate give preliminary approval to a $905 million General Fund budget bill.

The watered-down Act 250 reform bill drew faint praise from environmentalists, while critics of Act 250 said it didn't go far enough toward streamlining the permitting process, as a version passed by the Republican-controlled House did.

"I think it's a small step forward," said Stephen Holmes, a lobbyist for the Vermont Natural Resources Council, though he acknowledged the Senate's version "doesn't do a lot to protect the environment."

The bill that Senate Natural Resources and Energy Committee Chairman Sen. Richard McCormack, D-Windsor, ultimately shepherded to the floor didn't include two controversial pilot projects that split the committee.

One would have expanded the right of parties in Act 250 cases to appeal Environmental Board rulings to the Vermont Supreme Court.

Currently, only applicants, the state, towns, and regional planning commissions - not those challenging a project - can appeal.

The other pilot project would have allowed appeals of local Act 250 hearings to be conducted "on the record," taping them and having the state Environmental Board simply review a transcript or tape instead of having witnesses testify again.

Critics of Act 250 said on-the-record appeals would speed up the permitting process and make it less expensive, but environmentalists and supporters of the law worried it would make it harder for ordinary citizens to take part in the process.

The bill reduces the threshold for Act 250 review over subdivisions from 10 lots to six; abolishes the "Road Rule" that triggers Act 250 jurisdiction anytime a road longer than 800 feet is constructed; and creates a study group to look at ways to streamline the overall permitting process in the state.

"It's very watered-down. It just doesn't do much," Parker Riehle, a lobbyist for the Vermont Ski Areas Association, said of the Senate bill. "We think the House bill did a lot to cut down on the redundancy that occurs in the permit process."

The bill must be reconciled in a conference committee with a House-passed version that included on-the-record appeals, and it remained unclear whether Republicans in the House would agree to a compromise that didn't include that provision.

"It's a modest proposal for some modest improvements," said Senate Minority Leader John Bloomer, R-Rutland.

"I think in this case half a loaf is better than no loaf at all," said Senate President Pro Tempore Peter Shumlin, D-Windham.

Environmental issues were the primary focus of debate on the state fee bill as well. By a narrow 15-14 margin, the Senate turned back an amendment by a group of GOP members that would have directed the Agency of Natural Resources to allow new kinds of septic systems to be used in the state starting this fall.

The amendment revived a debate over septic regulations earlier this session in which allowing new technology was packaged with a repeal of a rule that exempts lots larger than 10 acres from septic oversight.

Environmentalists want to eliminate the "10-acre loophole," but dislike the possibility that new septic technology could open up previously undevelopable land. Developers and those who live in areas where soil conditions don't allow conventional septic systems want the new technology, but don't want to give up the 10-acre loophole until they see the rules for new systems.

That bill is currently being considered in the House, but some senators, like Sen. Hull Maynard, R-Rutland, said they wanted to get the new rules even if the House didn't pass the more comprehensive septic bill.

"To put it bluntly, that wasn't the deal," McCormack reminded his fellow senators moments before they voted it down.

Then it was McCormack's turn to be on the losing end of a vote, as an amendment he sponsored restoring some fee hikes for the Agency of Natural Resources that had been trimmed by the Senate Finance Committee was soundly defeated.

The fee bill passed by the Senate raises $12.6 million in revenue, but most of that - $11.1 million - is merely an increase of the fees the state charges hospitals and nursing homes, which will be returned to them after it is used to leverage federal funds.

In addition to boosting numerous environmental permit fees, the bill hikes the cost of a teachers license from $25 to $35; raises the cost of most hunting and fishing licenses, except for resident fishing licenses; and increases some Department of Labor and Industry fees.

The fee bill must also be reconciled with a House version.

Act 250 work disappoints many
Burlington Free Press
Friday, May 18, 2001
By Tom Zolper, Free Press Staff Writer

MONTPELIER -- After struggling for months to find a way to improve the state's law that regulates large commercial and residential developments, a Senate committee Thursday reached an impasse and approved a "lite" bill that pleased almost no one.
Despite furious hallway lobbying and bargaining in recent days to salvage key parts of the original proposal, members of the Senate Natural Resources and Energy Committee voted 6-0 to strip out those provisions as too controversial.
Disappointment was abundant. Sen. Richard McCormack, D-Windsor, chairman of the committee, called the final bill "Act 250 lite." Environmentalists and builders, who respectively think the law is either too weak to stop suburban sprawl or too restrictive, were equally sour.
"What we've been doing here is rearranging the deck chairs in the permit process to make it easier for developers to get through. We haven't done a whole lot to protect the environment," said Stephen Holmes, a lobbyist with the Vermont Natural Resources Council.
Joe Sinagra, a lobbyist with Home Builders and Remodelers Association of Northern Vermont, took the opposite view, saying the bill voted on by the committee Thursday will make it even harder to build new homes at a time of a severe housing shortage.
Both could be right.
The Senate bill makes no attempt at broad reform. Members of the committee never took up the call of the Natural Resources Council to let state regulators consider, when judging a project's impact on an area, the simultaneous effect of other nearby projects, Holmes said.
But it does contain a provision to allow regulators to scrutinize housing projects of six units or more if they are built within a certain space and time. Currently, the law says projects of 10 units or more will be judged.
The House, which is controlled by Republicans, approved in March a much more substantive, but also controversial, bill. That proposal would have created a pilot program to limit the amount of evidence and information someone could present to appeal a development permit. Builders said the measure could prevent unfair delays.
In the Senate, which is controlled by Democrats, McCormack resisted that proposal, and finally said he would accept it only if the committee approved a change in the law to allow project opponents to appeal to the state Supreme Court on a trial basis if they lost an appeal to the state Environmental Board. Only builders may appeal to the high court, a condition environmentalists say is unfair.
For weeks, Democrats on the committee who favored the trade-off -- and one Republican, Sen. Barbara Snelling, R-Chittenden -- tinkered with it to make it acceptable to two other Republicans on the committee, or at least to attract sufficient votes in a potential fight on the Senate floor. They failed in both respects.
In a last-ditch effort Wednesday morning, supporters of the trade-off suggested the Supreme Court itself could decide which appeals to hear. The fatal blow to their efforts came when Lee Suskin, court administrator, testified that the Supreme Court would probably take a substantial amount of time to decide whether to take the appeal, and then take most.
His lobbying efforts exhausted, McCormack suggested Thursday afternoon that the committee take out the entire quid pro quo, and with it the two most substantive but controversial proposals.
Sen. Virginia Lyons, D-Chittenden, who had supported the defeated section, said the bill still contains several good reforms, including measures to study ways for government agencies to cooperate in the permitting of building projects, assurances that regulators won't focus on only big projects, the six-unit threshold for regulatory scrutiny, and some streamlining of the appeals process.
The bill still could be changed on the Senate floor, or when key House and Senate members meet in conference committee to reconcile the two versions of the reforms. But some of those members publicly have pledged to block the most controversial -- and substantive -- measures from resurfacing.
Contact Tom Zolper at 229-9141

Senate panel approves Act 250 changes
By Mike Eckel, Associated Press,
MONTPELIER, Vt. (AP) A Senate committee approved an Act 250 reform bill Thursday while leaving out two controversial reform provisions that had been endorsed by the House.

The Senate Natural Resources Committee voted 6-0 to send the bill on to the full Senate for consideration.

Though voting unanimously to approve the bill, most committee members were frustrated by the bill's final version, which came after days of deliberation and 11 different draft versions, including one that was approved last week, only to be quickly retracted.

''It's a disappointment,'' said Committee Chairman Richard McCormack, D-Windsor, after the bill was approved. Other senators, including Sen. Barbara Snelling, R-Chittenden, said the final bill lacked any substance.

The action came after the committee's three Democrats and three Republicans struggled to pass a measure that met the demands of two competing interest groups: environmentalists and businesses.

Act 250 is the land-use regulation law that lays out a quasi-judicial process by which development projects are approved. Business groups have long complained that the process is cumbersome, costly and is often tied up by appeals from neighbors of developments and environmental groups.

Republicans in the House responded to business demands by pushing and passing in March a reform bill.

Among other things, that bill permits an ''on-the-record'' pilot project in which all testimony and evidence on a case before district environmental commissions would be recorded in case of future appeals. The bill also limits the ability of environmentalgroups to appeal permit decisions to the state Supreme Court.

Environmental and citizen action groups, however, say Act 250 is a sound law that protects Vermont's environment. The groups have largely fought the proposed reforms, saying they would shut the public out of key ways of participating in development decisions.

Many environmental groups were willing to accept the ''on-the-record'' provision, as long as appeal rights to the Supreme Court weren't curtailed. McCormack was intent on keeping those two measures together in the committee's bill.

But given opposition by two Republicans on the committee Sens. Julius Canns and Phil Scott and given pressure from the Senate leaders to move a bill, McCormack ultimately backed eliminating both the ''on-the-record'' and the ''appeal rights'' provisions.

Senators weren't the only ones disappointed: Business and environmental groups both criticized the committee's bill.

''It's a shame that fairness for all Vermonters has become a stumbling block for this bill,'' said Stephen Holmes, of the Vermont Natural Resources Council. ''This is clearly a very mediocre bill that is not going to protect the environment.''

Parker Riehle of the Vermont Ski Areas Association, said the House bill went far to make Act 250 less onerous on developers.

''This (Senate) bill .... doesn't do anything we would like it to do,'' he said.

The Senate bill still includes such provisions that would prohibit people from receiving a permit if they are in violation of an existing permit, and would require Act 250 permits to conform to local zoning and development codes.

The bill now goes onto the full Senate. Some senators suggested that the two provisions could be put back as amendments, when it takes up the bill early next week.

Effort to reform Act 250 is on the ropes
May 17, 2001

Act 250 reform clears Senate committee
May 9, 2001

By DAVID MACE Vermont Press Bureau

MONTPELIER — A plan to reform the state’s landmark environmental protection and development control law, Act 250, has survived a key vote in the Senate but faces an uncertain future.

The Senate Natural Resources and Energy Committee voted 4-2 to pass out an Act 250 reform bill Tuesday, but it contains a provision that could generate opposition in the House.

Two Republicans on the committee, Sens. Julius Canns, R-Caledonia, and Phil Scott, R-Washington, voted against the proposal, citing a pilot plan to allow parties in Act 250 cases to appeal Environmental Board rulings to the Vermont Supreme Court, the part of the bill that some in the House find objectionable.

“I worked very hard on the bill to get it where it was; we all did,” Scott said. “But I couldn’t in good conscience vote for the bill with appeal rights to the Supreme Court.”

He said he hadn’t decided whether he would support the bill when it came up on the Senate floor.

The House passed the Act 250 reform bill without the Supreme Court provision. It allows appeals of local Act 250 hearings to be conducted “on the record,” meaning that instead of hearing witnesses and testimony again, the state Environmental Board would simply review a transcript or tape of the original hearing.

The Senate version retains that provision as a pilot project, but while the House did away with allowing outside parties — frequently environmental groups — to appeal the rulings in local Act 250 hearings, the Senate version would restore some of those rights.

The Senate version also reduces the threshold for Act 250 review over subdivisions from 10 lots to six, but does away with the “Road Rule” that triggers Act 250 jurisdiction anytime a road longer than 800 feet is constructed.

The Senate Natural Resources and Energy Committee chairman, Sen. Richard McCormack, D-Windsor, said he was pleased to have advanced the bill through his committee, despite being unable to get a unanimous vote.

“I’m disappointed (at that) ... but I respect the Republican delegation,” he said. “They worked very hard to reach a point of compromise with us.”

McCormack predicted that the bill would garner strong Democratic support in the Senate, and said he viewed expanding the Supreme Court appeal rights as a trade-off for the “on the record” appeals.

He hoped it could be reconciled with the House version in a joint House-Senate conference committee.

“It’s up to the House,” McCormack said. “They can have a bill with a lot of good stuff in it ... (but) if they want to kill it I can’t stop them.”

The full Senate must still debate the bill.

Editorial in the Eagle Times, Claremont, New Hampshire
March 20, 2001

Debate over Act 250 hasn't been truthful

Despite some of the bitter debates of the past few years over contentious topics such as education funding and civil unions, the Vermont Legislature has generally been a place where fairness and civility held sway.

The ongoing debate over Act 250 in the Vermont House has caused us to rethink this. In the name of reforming the controversial environmental protection and planning law, opponents have been telling some major whoppers.

One of the prominent misstatements is how much of an impediment Act 250 is to development in Vermont. According to the state Environmental Board:

* Almost 80 percent of the applications filed in the past five years have been handled with only minor revisions and without the need for public hearings;

* In the past decade, the state's nine District environmental Commissions that evaluate development projects have received an average of 600-700 applications a year. Of this number, more than 98 percent received their permits and less than 2 percent of the applications have been denied by the commissions;

* Most permit applications have no opposition, and the average number of appeals of Environmental Commission decisions since the mid-1980s has been less than 5 percent.

We haven't heard much about this during the current Act 250 debate. We also haven't heard much public input either, something which is at the heart of Act 250. House Natural Resources Committee Chairman Phillip Angell, R-Randolph, has let business interests testify at length before his committee, but has not allowed any member of the public to speak their piece. Public testimony was limited to one hearing in Montpelier held during an ice storm where people got just four minutes each to speak.

The folks who want to revise Act 250 say they merely want to limit the role of environmental groups such as the Conservation Law Foundation and the Vermont Natural Resources Council in the permitting process. That is why a key provision of their proposal is to limit citizen input to testimony before the Environmental Commissions only, and to change those hearings from informal, citizen-driven affairs to courtroom-like proceedings. They would no longer be allowed to appeal decisions to the Environmental Board, as is the case now.

Some say doing this will streamline the permitting process and eliminate what some believe is a lengthy and needlessly complicated procedure. Instead, it gives applicants the ability to leisurely put together a case for their project. Citizens, who generally learn about the details of a project during the commission hearings, will no longer have the time or resources to put together a dissent and will have only one chance to make their case.

The key to Act 250's success over the past 31 years is the way it has balanced business interests with preservation of the state's scenic beauty and natural resources. In all but a few cases it has allowed development to take place -- as long as it is appropriate to the place it is being built. It is far from a NIMBY (Not In My Backyard) law. Any attempt to portray it otherwise is dishonest.

If citizens no longer have the ability to have a fair say in what their communities should look like, Act 250 falls apart. That's what the law's foes seem to want, and it appears they will do everything they can, including distorting the facts, to get their way.

Rutland Herald, March 20, 2001

Environmental groups assail Act 250 bill

by David Mace
Vermont Press Bureau

MONTPELIER -- Environmental and advocacy groups say changes to Act 250, the state's environmental protection and development control law, that passed the Vermont House on Friday will give citizens less power in the permitting process.
At a press conference Monday, the Act 250 Working Group, a coalition of the law's supporters led by former Progressive Party gubernatorial candidate Anthony Pollina, said Act 250's permitting process needed strengthening, not streamlining.
They pointed out that, according to the Vermont Environmental Board's own figures, 98.5 percent of projects are approved under Act 250.
"We're saying the whole conversation in the State House is wrong. (It) shouldn't be about how to so-called 'streamline' Act 250 for big development," said Stephanie Kaplan, an attorney with the Citizen Participation Network who formerly worked for the Environmental Board.
"How many Vermonters does that really affect? Very few," Kaplan said. "The rest of us are all affected by the fact that Act 250 isn't strong enough.
On Friday the House overwhelmingly approved changes to the 31-year-old law, which is lauded by environmentalists as a key to protecting Vermont's landscape and reviled by developers and business people as an obstacle to economic growth.
The bill would allow a trial period under which projects would only have to go through a hearing process once, at the District Environmental Commission level. The statewide Environmental Board would only review the tapes or transcripts of that hearing if either side appealed the District Commission's decision.
Currently, appeals to the Environmental Board require another hearing before that panel, a process that critics of Act 250 say is time-consuming and redundant.
The bill would also bar "materially assisting parties" in Act 250 hearings from appealing District Commission decisions. Supporters of that provision said it would keep environmental groups from tying up projects with appeals.
But members of the Act 250 Working Group said "materially interested parties" were not just environmental groups but were also local citizens, who might, for example, have critical local knowledge about animal habitats that could be affected by a project.
The group proposed its own set of changes for Act 250, including:
*Changing the Environmental Board from its current status as a part-time citizen board to a full-time professional one.
*Establishing an Act 250 advocate, a paid position like the Public Service Department that would argue on behalf of the environment and Vermont's citizens in Act 250 proceedings.
*Giving citizens the right to both sue to stop violations of state environmental laws and to appeal Act 250 rulings to the Vermont Supreme Court.
"Under the current system...out-of-state corporations have more rights than average Vermont citizens do," Pollina said. "Because those developers can appeal the decisions that the Environmental Board makes (to the Vermont Supreme Court) and citizens cannot do that.
"Developers and businesses have the advantage under Act 250 and now what they're trying to do is to further chip away at the ability of citizens to participate and chip away at the ability of Act 250 to protect the environment," he said.

House approves significant changes to Act 250

March 15, 2001

BY MIKE ECKEL The Associated Press

MONTPELIER - House lawmakers moved one step closer to passing significant changes to the landmark Act 250 land-use law Wednesday.

The House voted 120-14 to approve changes to the law, which include some of the most substantive reforms the law has seen since it was enacted 31 years ago.

The bill's sponsor, Rep. Philip Angell, R-Randolph, noted the heightened scrutiny and attention paid to the law, and the proposed reforms, at the outset of the two-hour debate.

"Act 250 is like Act 60; it always attracts all sorts of interest," Angell said.

Among the most significant changes in the bill approved by the House is a so-called "on-the-record" proposal. That would allow testimony given before district environmental commissions in 12 separate pilot cases to be legally on the record, to avoid having witnesses testify more than once if cases are appealed. The change would be temporary and would be reviewed in 2003.

To balance out concerns that that provision would shut out citizens from participating in an already daunting process, the bill sets up another temporary program: establishing an ombudsman, or facilitator, to help citizens or any permit applicants become more familiar with the Act 250 process.

Other proposals in the bill throw out permit requirements for certain roads, and change the definition of a subdivision from 10 lots to six lots in towns without local zoning or land-use rules.

The bill would also prohibit people from receiving an Act 250 permit if they are in violation of an existing permit.

Debate before the full House centered for the most part on concerns over the "on-the-record" provision, a proposal that has the backing of the state Environmental Board.

Some lawmakers worried that the provision would turn the informal, town-meeting-like atmosphere of the district environmental hearings into a judicial, courtroom-type of atmosphere. Neighbors or citizens looking to get in on the Act 250 process would be dissuaded from participating, some lawmakers said, because of the cost of hiring lawyers and the time needed for organizing legal arguments.

Rep. David Zuckerman, P-Burlington, voted against the bill, criticizing it for not setting up more ways to help small businesses through the permit process. He promised to add amendments on the bill's final reading that would direct more Environmental Board staff to work with small projects, under $500,000, he said.

Rep. Hank Schaefer, R-Colchester, repeated oft-uttered concerns of developers: that the Act 250 process is too costly and too cumbersome. He said the changes, far from reducing citizen participation, would improve it by keeping it at the level of the local, district environmental commissions.

"This particular bill is trying to bring back the genius of Act 250," said Schaefer, "by forcing people to state their business at the district level where it should have been done."

For some Vermonters and some lawmakers, however, Act 250 is almost a sacred cow -- a law considered fundamentally sound and in no need of changing.

"In 31 years, it's needed no tinkering," said Rep. William Aswad, D-Burlington. "I'll use a trite expression: If it ain't broke, don't fix it."

The vote Wednesday means the bill - and any potential amendments - would likely be considered for third and final reading Thursday. If the House approves it,

STATEHOUSE SPOTLIGHT: House set to debate Act 250 reforms
By Mike Eckel, Associated Press, 3/13/2001 18:56

MONTPELIER, Vt. (AP) Nearly three years. Upward of a million dollars. Dozens of witnesses. More than that in headaches.

Last month, Southwestern Vermont Medical Center's effort to get an Act 250 land-use permit for a 51-acre retirement and assisted living community in Bennington failed, over concerns of prime agricultural soils on the proposed site.

So it might be no surprise that the medical center's chief executive officer, Harvey Yorke, is watching what the Legislature plans to do with one of Vermont's most respected, reviled and revered laws.

''My fear is that if it doesn't get modified and amended so that it can be a tool in balancing development . . . I don't know,'' said Yorke.

Thirty one years after it was enacted, the Act 250 land-use law is facing a substantive tweaking of the way it regulates development in Vermont. As early as Wednesday, the full House could take up a bill that makes changes to a law that has been for many developers, a bane, and for most Vermonters, the state's saving grace.

''Let's not let streamlining become a code word for gutting the law that protects Vermont's environmental heritage,'' said Spencer Putnam of Weybridge, one of several people speaking at a joint House-Senate public hearing last month.

''It's a sound regulatory law as long as it's not used as a substitute for planning,'' said David Dillon, president of the Vermont Ski Areas Association. ''We've never had a problem with Act 250 as a regulatory piece of legislation.''

But, he said, ''everybody has, I think, considered that it's been more cumbersome and more expensive than ... it was intended to.''

Among some environmental and conservation groups, there's even a sometime grudging acceptance that some tweaking to Act 250 is a given. That's not to say there's uniform support among such groups for even considering it, however.

''While we think the bill is as moderate as we're going to see in the House, it does have at least one element that cuts against citizen participation, and that's a problem,'' said Steve Holmes, of the Vermont Natural Resources Council.

Rep. Philip Angell, R-Randolph, said among the most significant changes is the ''on-the-record'' proposal. That would allow testimony given before district environmental commissions in 12 separate pilot cases to be legally on-the-record, to avoid having witnesses testify more than once if cases are appealed. The proposal is a temporary one that would be reviewed in 2003.

The bill sets up a temporary ombudsman, or facilitator, program to help citizens become more familiar with the Act 250 process. Other proposals throw out permit requirements for certain roads, and change the definition of a subdivision from 10 lots to six lots, in towns without local zoning or land-use rules.

The bill would also prohibit people from receiving an Act 250 permit if they are in violation of an existing permit.

''To anyone who's trying to make life decent for Vermonters, this (bill) will do it, or it should do it,'' said Angell, chairman of the House Natural Resources Committee.

Last year, the Legislature faced a similar Act 250-overhaul bill. As the House considered the bill, however, several amendments were tacked on that the Democrat-controlled Senate objected to once it received the bill. It died without leaving committee.

That's still a danger this year, said Rep. David Deen, D-Putney, who also sits on the Natural Resources Committee. There's concern about how the committee handled witnesses in preparing the bill, he said. And there's no guarantee that House members from either party won't try to tack on amendments that the other party would object to.

But, Deen said, there is momentum toward finding a way to make the process more palatable to developers without gutting the law's core intention.

''It's time for a 250 bill, and they know it, we know it,'' Deen said.

Senate Natural Resources Committee Chairman Richard McCormack, D-Windsor, was more guarded in his prognosis and he warned against what he called ''an episode of hysteria'' when the full House debates the bill.

''If they send us something wacky, I will be the voice of reason and send them back something that . . . would be a completely different from what they sent us,'' said McCormack.

The proposed changes wouldn't necessarily have helped Southwestern Vermont Medical Center get an Act 250 permit, but, Yorke said, they certainly would have an effect on future development, and even the medical center's own decision to try for another permit.

''I can't imagine any health care system wanting to take the risk of developing off campus right now,'' he said.

Environmental groups, like the Conservation Law Foundation, the Vermont Natural Resources Council and others, have watched the changes coming out of the Republican-controlled House committee with suspicion. Holmes of the VNRC, said the most troubling part of the proposed bill is the on-the-record provision.

That ''is going to make district commissions into a real courtroom battleground and that's not going to make the process easier for anybody,'' Holmes said.

''The big guys the Wal-Marts, the Home Depots, the deep pocket developers will be able to game the process and the mom and pops are going to be left in the dust,'' he said.

The on-the-record provision was crafted in consultation with the state Environmental Board, which has tried the process.

Holmes said the addition of the ombudsman, and reducing the subdivision threshold from 10 to six lots, was a positive step. Like other watchers, however, he fears what the bill may end up looking like after the House debate.

''It's like a lot of things in the Legislature,'' said Holmes. ''It's got the good and the bad. We just hope it doesn't have the ugly.''

On the Net:

Vermont Natural Resources Council:

Associated General Contractors of Vermont

Vermont Environmental Board:

Vermont Legislature: