Reprinted with Permission from the Author:
FIXING ACT 250
by Joyce Marcel
Almost everyone who has ever been involved with Act 250 has an idea
or two about how it can be improved. Here are some of the creative ideas
being advanced today.
Eliminating permit duplication is on the minds of almost everyone.
"We have essentially three permitting processes," said Kevin Dorn,
the executive officer of the Home Builders and Remodelers Assoc. of
Vermont. "It doesn't make sense that you have an agency like Natural
Resources reviewing storm water issues, and those same issues are being
reviewed again in Act 250. Or that a town can approve a project as
conforming with its plan, but that decision is reviewed again in Act 250.
What we're saying is do the review once at the appropriate location, and
don't do it more than once with different standards."
Streamlining would not be environmentally harmful, Dorn said.
"We believe the reviews that protect the various resources must
take place, but they should only be done once, in one forum, with the
appropriate right to appeal to a higher authority," Dorn said. Many people
would like to see the elimination of duplicate permits.
"Our recommendation has been that the Agency of Natural Resources
should hold hearings simultaneously with the Act 250 hearings," said Mark
Sinclair, senior attorney of the Conservation Law Foundation. "Both bodies
should be sitting in the same room taking information at the same time.
The beauty of this is that it forces the ANR to participate and provides
good information. Also, it makes sure the public is participating only
once in both procedures. Have joint notices and issue joint draft
James Pizzagalli, co-chairman of Pizzagalli Construction Company
and president of Pizzagalli Properties, also recommends concurrent hearings.
"Have a concurrent review of permit applications for all aspects of
the Vermont permit system," Pizzagalli said. "To a developer, it doesn't
matter if you're spending time before the local boards or the state or Act
250. It's all permits, and if you can simplify the process, the whole
In their joint position statement on Act 250 (Nov. 2000), the Lake
Champlain Regional Chamber of Commerce and the Greater Burlington
Industrial Corporation (GBIC) recommend establishing "realistic deadlines
for actions on permits, including a timeline for accepting when an
application is complete and a timeline for final action."
3) ADDING FACILITATORS
Bill H-475, which passed a House vote in March, calls for a pilot
program that would introduce a facilitator into one District Commission
office to help businesses through the Act 250 process. The Chamber and the
GBIC support this idea:
"Provide additional qualified and knowledgeable permit specialists
to assist applicants, especially small business and small landowner
applicants, in the preparation of permit applications and guide them
through the process," they say.
They also suggest adding more district coordinators and district
commissioners in districts where there are large numbers of applications.
4) FEWER EXPERTS
The Chamber and the GBIC suggest that hearings be structured so
"the use of special consultants (attorneys, engineers, planners, etc.) is
the exception and not the rule. An applicant should be able to go through
the hearing process without such assistance, except in the most complicated
and complex cases."
5) PERMIT MORE DEVELOPMENT
Vermont has a housing crisis that is partially caused by having too
many restrictions on land use, Dorn said.
"Nothing is being built in the $125,000 to $200,000 range," Dorn
said. "Nothing. The reason is the cost of the lot. As land use has been
restricted through a myriad of state and local and federal restrictions,
there is less and less land available for housing, and the cost of the land
that is available goes up. Unless and until we free up land for
residential construction, we will have a housing crisis in the state.
That's the bottom line."
6) PROEFESSIONALIZE THE ENVIRONMENTAL BOARD
Act 250 has gotten more and more complex over the years, and some
people believe it should now be staffed by full-time professionals.
"A smaller, full-time Environmental Board with appointees committed
to protecting the interests of Vermonters and our environment, and with the
same independence from politics given to judges, would do more than
anything else to improve the process," said Act 250 attorney Stephanie J.
Kaplan. "The cases that come to the Board are too large and complicated
for volunteers to deal with. Even if they had the capability, the simply
don't have the time. Plus, the types of people who can afford to give up
more than a day a week are limited to retirees, rich people, or lawyers who
want to enhance their resumes. A full-time Board could have technical
staff that can provide it with substantial information."
7) CREATE AN ACT 250 BOARD
The creation of an Office of Public Advocacy, which will, like the
Public Service Board, advocate for the environment, is an idea being
sponsored by environmentalists. They claim this would take the politics
out of Act 250.
"The Dean administration has become a cheerleader for major
development proposals, and has politicized Act 250," Sinclair said. "And
that has skewed the Act 250 process. We should create a small, independent
public advocate for the environment, like the Public Service Dept. It
should be professionally staffed, with a planner, a water quality
specialist, and a biologist to review Act 250 information and assist the
District Commission. This kind of public advocate system is already used
in Wisconsin and New Jersey to take the politics out their state land use
8) CLEAR AND CONSISTENT STANDARDS FOR INTERVENERS
An often-heard argument is that Act 250 is inconsistent, especially
about who can intervene in a particular case.
"If we're going to change the participation rules, lets do it in a
way that's predictable," Sinclair said. "Let's adopt the rule of civil
procedure -- V.R.C.P 24, which governs intervention. It allows
participation for legitimate interests. You have the right to participate
if: you have an interest in the transaction; that interest may, as a
practical matter, be harmed by the outcome of the proceedings; and your
interest is not adequately represented by other parties to the proceeding.
It recognizes property interests and environmental interests."
This rule is used by the courts, the Water Resources Board, the
Public Service Board, and the Waste Facility Panel of the Environmental
Board, Sinclair said.
"Act 250 is the only court-like body that doesn't use 24," Sinclair
said. "If we're going to change party status in Act 250, let's use the
rule that is used by every other administrative forum. That will provide
consistency and a balanced treatment of interveners."