Legislative Update: The Future of Act 250

One of the biggest bills we will work on this session is a significant and (I think) very exciting overhaul of Act 250. The Senate Natural Resources and Energy version of this is S.308. But before I get into it, here's a little background. For a primer on Act 250 (Vermont's signature land-use planning law), for the history of its origins, and for an overview of its current problems, I highly recommend VPR's Brave Little State podcast on Act 250.

What do I think about Act 250? I'm grateful for the environmental backstop that it provided to Vermont, especially for the towns that didn't and don't have zoning regulations, but I also believe Act 250 no longer serves Vermonters as well as it once did. In the last 50 years, many towns have adopted zoning regulations that duplicate the criteria for Act 250 and it's clear that Act 250 has
1. Prevented good development in our downtowns and village centers,
2. Not prevented sprawl, and 
3. Not protected significant ecological sites. 

Here's the good news: Within the last few months of 2023 there were three studies all having to do with Act 250 (1. Regional Future Land Use, 2. State Designation 2050, and 3. Natural Resource Board's Necessary Changes to Act 250 aka "Act 250 Modernization"), which astonishingly, across a broad spectrum of stakeholders, had a high degree of alignment of their suggestions for how to modernize Act 250. Recommended by both environmental advocates and housing advocates, this set of consensus suggestions represents the package of changes that are currently represented in S.308. In testimony on this, it was delightfully refreshing to hear economic development champions to call for better regulation to prevent forest fragmentation and defending Vermont's pristine ecological sites, and then to hear from environmental advocates on the need for more housing in our already-developed downtowns. I hope this description conveys how magical and significant this consensus is. 

Images from Charlie Baker's Testimony, the Chittenden County Regional Planning Commission

​The current paradigm of Act 250 is "threshold based". If you build too much or too fast, it triggers regulation. The new paradigm embodied in all three of these reports is a shift to "location based" regulation. There are some places where we want to encourage development, like in our downtowns and village centers, which are already well-regulated. And there are some places that are so ecologically sensitive or significant that ANY development should be regulated there, even if it's just one unit of housing. 

The language that we have been using in committee to distinguish between different types of places comes from the "Necessary Changes to Act 250" report (aka the NRB report), which uses a tier system.

Tier 1a: These are downtowns or previously-developed areas, with access to water and sewer, in cities and towns which have such robust zoning that Act 250 is duplicative. These are places that will likely either be exempt from Act 250, or they may locally administer the Act 250 process, or something similar. 

Tier 1b: Village centers or towns which may not have access to both water and sewer, and who's zoning may not be quite as robust as checking all of the boxes of Act 250, but maybe they check some of the boxes. And so these areas would get some level of either exemption or self-administration of Act 250 that corresponds to the zoning the do have or some other loosening of the regulations. 

Tier 2: Rural areas that are not Tier 3. Act 250 would continue to apply here potentially with an additional provision called the "road rule" that would help prevent forest fragmentation, like the kind seen in Charlie Hancock's testimony from Montgomery, VT (his part starts at 29:40). 

​Tier 3: I'll quote the bill as it currently stands: "These lands have significant ecological value, and require special protection due to their uniqueness, fragility, or ecological importance. They may include protected lands, areas with specific features like steep slopes or endangered species, wetlands, flood hazard areas, and shoreline protection areas and are intended to remain largely undeveloped for the benefit of future generations."

Now, to be fair, we've got a long way to go before any of this makes it to the floor for a vote, but I wanted you to have at least the basics of the kind of shifts in Act 250 that may be coming. There's reason to be hopeful about land use planning in Vermont, and I'm looking forward to working further on these historic Act 250 reforms.