Act 250 Overhaul (S.311) - April 2, 2024

Peter Tucker (Advocacy & Public Policy Director, Vermont Association of Realtors) joined the Senate Natural Resources Committee on Tuesday to discuss S.311 and H.687 which both deal with overhauling Act 250. He was excited at the prospect of the “ways these two Bills will end up working together,” suggesting this is a “real opportunity” to reform land use and housing development. He acknowledged the work of the Summer Study Committee and the Natural Resource Board (NRB) and study of land use designations and the realtors association were participants in both.

As he has been speaking to developers, it is clear that Act 250 has created the housing crisis and everyone has been telling policy-makers this for years. It has created a tax problem due to the lack of growth in the Grand List to support government and much increased education costs.

He noted that municipalities will be burdened especially with “qualifications for Tiers 1A and 1B” and also for exemptions to Act 250 review. He suggested keeping requirements to a minimum to avoid hindering progress towards housing goals. He also suggested that they look at new incentives to get developers to “look harder” at commercial conversions.

In terms of the transition mechanism from the current designation system to the new mapping system, he is supportive of the exemption “radius around existing village and downtown centers.” He believes these radii will continue the work started last year with thresholds for Act 250 many of these “designated centers.”

Tucker added that “when the maps come out, they are going to more precise as being based in geography…” but river corridors (like Montpelier where he lives) are a big swath that goes through most towns so we need to delineate that subjectively.

He encouraged them to better define what “workforce housing” means in the bill. This seems to be generally understood as basically “affordable” for local wages but that is subjective. He also acknowledged a criticism from Senator MacDonald that developers build smaller to avoid Act 250, so creating these higher thresholds will encourage more projects that will be economically viable.

Chairman Bray has stated before his doubts about “duplicative permitting,” but wondered about the impact of this. Tucker agreed that the need for avoiding these is real and costly, even within Act 250, so the Association of Realtors will have more precise comments on this in the future.

Probably the largest policy difference is that Tucker doesn’t “feel the reconstituted NRB should Hear Appeals (as in H.687) of Act 250 Permits. Regulators who make the Rules and assist District Commissions in Decisions should not sit in judgment of those same Decisions. We have separation of powers for a reason…”

Bray asked if he has looked at the Public Utilities Commission (PUC) as a model. Tucker had and argued that the PUC has not worked that well and “we won’t want it replicated.”

NOTE: This is the same Committee that gave the PUC responsibility for designing, implementing, and overseeing the Clean Heat Standard program.

Senator McCormack said he doesn’t think it was that odd to keep it with the NRB in a quasi-judicial process with the new “professional” format.

Tucker closed his testimony by calling the new road rule (which restricts driveways and roads of a certain length above a certain elevation) “arbitrary and that additional standard is going to be added and what the impact is going to be on their lands…” He wondered if they can understand it and how it will be applied. He thinks this will restrict housing development in Tier 2 mapping areas.

See written testimony.

Judge Thomas Zonay (Chief Superior Judge, Vermont Judiciary) joined the Committee next and confirmed that they are looking at two models in the new legislation:

  • 1st Appeals reside at a larger revamped NRB.
  • 2nd continue to reside at the Environmental Division of the Superior Court.

These are policy decisions the Legislature makes, he noted, and in 2004-5 they decided to go to the Environmental Division (only state in the nation to do this). Because it combines all permits at one shop, the two sides both know what the other side has and also provides consistency across permits, that is a benefit. If some of these are to be directed to the NRB, some elsewhere, cross purposes are likely.

Bray suggested these are actually hard to bundle up at one place due to timing of the parties and interests as well as various locations the permits originate from. Zonay noted that they have allowed delays in order to bundle up the permits inside the court and sometimes at the request of the parties. He added that due process in discovery here is also a factor. Sometimes appellants can use sluggish discovery as a strategy, but he says “clients sometimes don’t agree” with lawyer’s timelines.

He suggested some additional administrative changes related to timing of appeals and adding additional judges and staff.

They heard from Chris Winters (Commissioner, Department for Children and Families) who emphasized that we need to make “services to house homeless, make these rare, brief and non-recurring.” He described the current practices on dealing with homelessness as “warehousing,” and not solving the issue.

He noted that the average aid length of stay in 2015 was 54 days and today is well over 200 days. Without a unit to move folks to these numbers will remain the same, we need and are trying to build more shelter spaces that are affordable.

They have added 80 new shelter beds in FY24, another 100 in FY25. Currently, 539 shelter beds exist across the state, along with 1500-1600 hotel units. There are about 2500 people across that whole system. This includes several hundred disabled persons, some domestic violence displacements, etc.

Current costs just for hotel-motel program was $70M, they are expecting a 15% reduction for FY2025, but it’s still comparatively expensive.

Winters made a simple plea to do anything they can to create more units short term that can return us to a system that is “rare, brief and non-recurring”.

McCormack asked if they have any kind of profile for these folks? He and his wife found folks at the food shelf, where they help, are not the people they expected. Winters agreed that many people are just living on the edge and a paycheck away from disaster.

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