Commentary By John McClaughry

Columns / Jan. 11, 2001 12:00am EST

'Vague' Town Plan Provisions Can't Rule Act 250

Commentary By John McClaughry

On the eve of New Year's weekend the Vermont Supreme Court handed down an opinion, little noticed in the media, which sharply curbed the self-assumed powers of the state Environmental Board. Before addressing the specific case, it is first necessary to understand developments stretching back 30 years.

Under Vermont law towns which wish to control development adopt a town plan. Town plans are developed by planning commissions and ultimately adopted by vote of the governing body. They are imprecise, visionary pictures of what the town government wants the town to become. Once a plan is in place, a town may implement it by adopting zoning bylaws. Zoning bylaws, by contrast, are not visions, but laws. They are adopted by the voters and binding on landowners.

When Act 250 was enacted in 1970, it contained (and still contains) "Criterion 10". This criterion requires permit applicants to demonstrate that their proposal is "consistent with any duly adopted municipal or regional plan..." The question immediately arose whether a permit could be denied for failure to conform to a town plan. Attorney General James Jeffords, who had played an important role in drafting Act 250, issued an advisory opinion saying no: town plans were too vague and imprecise to serve a valid regulatory purpose.

For years the Environmental Board avoided denying a permit solely on the basis that the proposed development was inconsistent with a town plan. The Board was afraid that it would lose a court challenge, and the whole edifice of Act 250 might come tumbling down.

In a Manchester case decided in 1993 (Molgano), the EBoard argued that it had the power to deny an application for failure to conform to a town plan, even if the applicant had a valid zoning permit based on that plan. It also argued that it could apply zoning laws retroactively to stop a development it didn't like.

A unanimous Vermont Supreme Court slapped down both of those arguments. It held that if an applicant held a valid zoning permit, the Board could not use "non-regulatory abstractions in the town plan" to reject an application.

Now comes the Court's December 29 ruling in the Kisiel case. The Kisiels wanted to build a five-unit residential subdivision high on a Waitsfield hillside, at the end of a Class 4 town road. In 1996 the town planning commission voted 5-3 to approve a subdivision permit with numerous difficult conditions. The next year the selectboard granted a permit to improve the road, with many conditions. In November 1997 the district environmental commission granted the Kisiels an Act 250 permit, again with many conditions.

The Town government, apparently opposed to this project but lacking the legal grounds to deny the permit applications, then appealed the Kisiels' Act 250 permit to the EBoard. It begged the EBoard to do what the town was legally unable to do: reject the permit as not in conformity with the Town's own plan. The EBoard obligingly agreed, and denied the Kisiels' permit under Criterion 10.

The Supreme Court (13 months after oral argument!) has now emphatically overturned the EBoard's permit denial. Said the Court, "The Board erroneously focused on the [town] plan's vague and ambiguous language, while ignoring the Town's prior actions with respect to the project..." In other words, the Court held that the EBoard is not entitled to rummage around in town plan language to find an excuse to deny an Act 250 permit.

Admittedly, the town could adopt zoning and other regulations based on its town plan in such a way as to deny projects like the Kisiels' five homes; but if the town doesn't choose to do so, it can't enlist the EBoard to do its regulatory work.

The Court's rulings in the Molgano and Kisiel cases have seriously upset the land use controllers and their lawyers. Now, as they correctly see it, land regulators can not deny Act 250 permits solely because the projects don't comply with whatever requirements they can read into the vague and ambiguous language of a town plan.

From now on, a town government can still impose strict land use requirements, but it can no longer run to the EBoard to get it to use Criterion 10 to thwart would-be developers. The next desirable step is for the legislature to amend Criterion 10 to require conformity with town zoning bylaws and subdivision regulations, and eliminate reference to the "non-regulatory abstractions" of town and regional plans. After all, the Supreme Court has spoken.

John McClaughry is President of the Ethan Allen Institute (www. ethanallen.org).

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