Gov. Phil Scott’s latest plan to update the state’s 50-year-old land-use law has quickly run into legislative and legal resistance.
Scott issued an executive order last week shifting power from the nine volunteer district commissions that administer Act 250’s development regulations to a single, professional statewide board.
“We can and must protect our environment and support regional economic development reliant on vibrant downtowns and village centers,” Scott said in a press release. “That’s our focus in this work, because we cannot achieve these goals with the outdated and cumbersome administrative structure we have today.”
Passed in 1970 in response to unchecked growth that followed completion of interstate highways, Act 250 established statewide standards even while setting up district commissions to retain local control. Today, critics contend that the decentralized model creates inconsistency in its administration and duplication of effort when local decisions on large projects are inevitably appealed.
The Scott administration proposed a similar revamp of the law in 2019, but the idea never made it out of the House of Representatives, and the Senate narrowed the modernization effort last year amid COVID-19 restrictions.
The governor’s executive order quickly ran into old roadblocks, however.
Lawmakers have 90 days to weigh in on the order. Under current law, one chamber of the legislature can block its July 1 implementation date, though this power is in dispute.
“I’m still not sure what the problem is we’re being asked to fix with this executive order,” Sen. Dick McCormack (D-Windsor) said Thursday during a hearing of the Senate Natural Resources and Energy Committee.
Administration officials tried to convince lawmakers the changes are sorely needed to improve a system that is ill-suited for the complexities of modern land-use law and science.
“The proposal is getting at the fact that Act 250 currently isn’t well positioned necessarily to grow and evolve and remain relevant in a world that is increasingly complicated and, frankly, litigious,” Julie Moore, secretary of the Agency of Natural Resources, told lawmakers.
Louis Porter, commissioner of the Fish & Wildlife Department, said there has long been tension between the consistency of statewide standards and the flexibility afforded by local implementation.
His staffers spend an inordinate amount of time interacting with the volunteers who serve on the nine district commissions on Act 250 applications.
In the governor's model, the three professional members would be joined by two volunteers from the local district who would also have voting power. That, Porter maintained, would improve the process.
“You will have consistent application from the full-time board members and you will also have input from those who know the local area and community best,” Porter said.
A version of the proposal floated last year raised concerns that Scott’s three appointees would outnumber the local voices.
A number of complex legal questions are also swirling around the executive order and may effect whether the changes it promotes materialize. One is whether the governor is overstepping his authority to make such sweeping changes in state law, or whether only the legislature has that power.
Another is whether one chamber of the General Assembly can block the executive order. That’s what state law says, and legislative attorneys say the law is sound. But Scott’s general counsel, Jaye Pershing Johnson, argued that a lot has changed since the law was drafted, and other courts have ruled that giving one chamber such power might be unconstitutional.
“We would like to see the committees continue to work on the merits of the proposal and let the courts make a determination on the legal issues,” Pershing Johnson said.
The legal strategy is similar to that taken by the administration on the Global Warming Solutions Act, which was passed over Scott’s veto. His administration said it would participate on the 23-member Vermont Climate Council that the act established, but reserved the right to sue to ask a court to decide the law’s constitutionality.
In addition, Bristol attorney James Dumont has sued to block Scott's order in Washington County on behalf of Montpelier land use attorney David Grayck. The suit argues the order is unconstitutional, and the restructuring will cause Grayck to lose business.