Civil engineer: Vermont’s land-use law driving out small, mid-sized developers

By Bruce Parker | Vermont Watchdog

David Burke knows what it takes to build in Vermont.

The civil engineer and partner at O’Leary-Burke Civil Associates in Essex Junction has 29 years’ experience with land use planning and permitting.

But Burke says the state’s land-use law, Act 250, has become so complex that small and mid-sized developers can no longer build in the Green Mountain State.

“They’re making people avoid Act 250, because of its difficulties — they’re running out the mid-to-small developer,” Burke told Vermont Watchdog. “The only developers that can get through the process are the biggest developers, because the process is very costly.”

Burke works with clients to identify lands and plan developments for residential, commercial and industrial sites. But in recent years the engineer has seen the state’s land use regulations spiral out of control.

“The most troubling trend is Act 250, which started off as a very good law. It’s supposed to control visibly shocking developments — we don’t want billboards, we don’t want houses on mountaintops, and we don’t want our mountaintops scarred. Any Vermonter can agree these are good things,” he said.

But while Act 250 may have good intentions, Burke said its regulations have become so steep, and its bureaucracy so large, that it acts as a roadblock for even the most scrupulous land planners.

“Until about 10 or 15 years ago I had no qualms about Act 250. I would tell people who were complaining about it, ‘Don’t worry, if I do my job we’ll get the permit.’ In more recent years, it’s just the opposite. When you can avoid Act 250, you do, because all the different agencies don’t work together,” he said.

The Legislature passed Act 250 — “The Land Use and Development Act” — in 1970 to manage development coinciding with the opening of Interstate 89 and I-91. The law’s famous “10 Criteria” were written to ensure new building projects meet the state’s environmental, aesthetic and water use standards.

The criteria expand constantly, Burke said.

“Go into one criterion of the main 10 and you’ll find items A through P in there. Well, there didn’t used to be items A through P in there. And you can go into any of the different criteria and see the same thing.”

Act 250’s permitting process is administered across nine districts overseen by the Natural Resources Board. Developers whose permits are denied must take their case to the court of final appeal, Vermont’s Environmental Court.

Ever since Vermont passed its land use law, the state has been embroiled in never-ending controversies, such as the current fight over H.823. The bill would amend Act 250 to prohibit new projects that “establish, extend, or contribute to a pattern of strip development along public highways.” While many developers say that is anti-development, the Senate Economic Development Committee voted 4-1 Friday to approve the measure.

The governor appears baffled by criticism of Act 250.

When the owners of a slaughterhouse in North Springfield expressed worries that permitting regulations might railroad their plans for expansion, Gov. Peter Shumlin remarked, “Vermont’s permitting process is easy compared to a lot of other states.”

Burke admits certain developments can survive the barriers posed by Vermont’s land use law, but he said his job has become harder than ever.

“I can identify lands for development, but you have to look much closer at a lot of things, and you can’t be as definitive. With more experience I am less definitive than I was with half the experience, because of the unknowns of how the agencies are treating some of the lands today.”

Contact Bruce Parker at bparker@watchdog.org