McClaughry: The coming report on expanding Act 250

By John McClaughry

Two years ago the Legislature created a six-member commission to assess the 50 years of experience with Vermont’s Land Use Control Act and “assess, to the extent feasible, the positive and negative outcomes of Act 250’s implementation from 1970 to 2017.” The commission was charged with developing legislation for consideration in 2019.

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

Here’s a bit of background on the enactment of Act 250. (Disclosure: I am probably the only member of the 1970 Legislature still active in our state’s public life. I was active in the debate then and afterwards, offered the only successful floor amendment, and cheerfully voted yes on passage.)

In 1969, practically everybody shared Gov. Deane Davis’s alarm at the threat of developers launching huge projects — notably in Wilmington and Dover — that would completely overrun the capacities of local governments to deal with water, sewer, town roads, traffic, police and fire protection, and schools.

The 1968 municipal planning and zoning act gave towns considerable authority to deal with these issues, but few had familiarity with the tools. Thus Act 250 was enacted to require developers of larger projects to obtain permits by showing district environmental commissions that their projects complied with all ten ill-defined criteria (“no adverse impact”).

There was one notable interest group opposed to pollution and oversized development, but also determined to make Vermont over into their Perfect Little State. That group was the Vermont Natural Resources Council (VNRC). Its lobbyist, Jonathan Brownell (later its chairman), was ever present in the Statehouse and can rightly claim to have been co-author of the act.

Brownell, a Yale-educated New York lawyer who moved to Vermont in the mid-1960s, was firmly committed to this idea: Just as municipal zoning bylaws must be based on an adopted town plan, so Act 250’s development permits must be based on a State Land Use Plan, approved by the Legislature.

This contention, which proved to be false, triggered an enormous and largely unnecessary six-year political battle. When the smoke had cleared, the Legislature had killed three progressively weaker State Land Use Plans, Plan champion Democratic Gov. Tom Salmon lost an otherwise winnable U.S. Senate race (52-48), and in 1984 the requirement that there even be such a Plan was quietly repealed.

Despite the rejection of its yearned-for plan — development would be permitted only in its correct place as mandated by the plan — the VNRC persisted in another belief that inspired vehement opposition. That was the belief that the idea of private property was nothing more than an obsolete relic of Dark Age selfishness and a needlessly annoying nuisance to public-spirited planners.

The Vermont Constitution acknowledges that private property may be taken for the use of the public, but if so, the owner must receive just compensation — “an equivalent in money.” The state can surely prohibit the use of private property that causes pollution or injuries to others. But what if oppressive state regulation — not for controlling pollution, but for carrying out somebody’s master plan for the Perfect Little State — strips a property owner of any beneficial use?

That’s called a “regulatory taking.” VNRC held a well-attended conference on how far regulation could go to take property value without becoming a compensable regulatory taking. This disdain for a Vermonter’s right to make beneficial use of his or her property in land persists to this day. Needless to say, it incites vigorous resistance.

As the 50th anniversary of Act 250 approached, VNRC became the driving force for a commission to revise the act to move Vermont on toward that Perfect Little State. As introduced, its legislation specifically guaranteed that VNRC would have a seat on a public commission. The Legislature, however, decided to create a six-member legislative commission. VNRC had to be content to serve on an advisory panel with nine other land use control enthusiasts, along with five state government officials.

The lone “business representative” on the advisory panel is a (admittedly very able) solar farm developer who previously chaired Gov. Douglas’s Commission on Climate Change, that declared that reducing greenhouse gas emissions is “the major challenge facing Vermonters in years to come.”

It’s transparently clear that the driving theme of the commission’s recommendations will be state regulation of as much land-related activity as can be swept under Act 250, to assure that our march to become the Perfect Little Climate Conscious State continues unabated.

I’ll have more on the commission report when it’s released.

John McClaughry is vice president of the Ethan Allen Institute.

Images courtesy of Bruce Parker/TNR and John McClaughry

8 thoughts on “McClaughry: The coming report on expanding Act 250

  1. It’s sad, but to repeat my analysis that’s causing VT’s problems:

    If there were a way of diluting the monopoly and controlling influence of the elected in Chittenden County, it needs to be done…otherwise you have what you have. Need to limit the numbers, alike as in America- 2 Senators per state- therefore 2 Senators per Country, not based on the number of people. Rutland & Windsor Counties have 3 Senators. The political geography needs to be spread about evenly.
    But the majority of Montpelier won’t cave in and change this scope making it more fair. Also I learned since that country has 35 Representatives. That very liberal country controls VT.
    I can only hope they collapse on their own doing. Otherwise, time will tell.

  2. I don’t think I can paste a picture on this site. A few years ago I posted signs on road frontage when the “I AM VERMONT STRONG” plate first came out.

    My sign read:
    (copied the): VT STRONG PLATE with a diagonal line through it with wording ” BS (spelled out) I AM TAXED (underlined) BY IDIOTS FOR IDIOTS”

    Another sign,( this is a old native saying)
    “VT’ERS SLOGAN “WELCOME TO VERMONT, NOW LEAVE”

    Another sign:
    “VETERANS PROTECTED, VT TAXES VETS HOMELESS”

    And a few more signs and change them often, hoping Flatlandres get the message Ref
    “SQUIRREL POWER, NOT WIND POWER”

    Nice comment by Lynn Edmunds. Basically, no one owns their property. The result of ill informed politicians and local Lister greed to get as much taxes as they can possibly obtain from the unknowing owners..

  3. “Right On”, John. A great point-counter point between humans and the Progressive’s perfect little state as illustrated by another John in Legend’s song All of Me, “all your perfect imperfections”.

  4. Dear John,
    My more simplistic take on your article is based on living through what you describe in your article but not being aware of what was really taking place during that time. This is and was the case for most Vermonters who perhaps like myself were too busy with life to see what was happening to them and their livelihood. I pray that what was done to average Vermonters and our state over the first 50 years of Act 250 is not repeated and accelerated to a greater degree over the next 50 years. A state almost totally governed and controlled by special interest and lobbyist is not as the Vermont license plate suggests “Vermont Strong”!
    When individuals are barely allowed any direct control or authority over their own property and their right to use it as they see fit something is wrong. The people of Vermont have little or no power or authority left and our system of capitalism is all but dead for lack of incentive, the catalyst or fuel that creates prosperity.

    I posted the following to Front Porch Forum today and sent it to the Rutland Herald:

    Subject: The Second Inaugural where will it take us?

    Fifty years ago Act 250 imposed the will of others on Vermonters, at that time we were told we should stop carving up our land into one acre lots but it was ok to have 10 acre lots. Now they are telling us we should move back to town and live in an apartment over a store front. Of course the community will have to be walkable because after the cost of fuel is put out of reach by a carbon scheme we will no longer be able to afford to drive anywhere. But buses and bicycles will of be available should we have need to travel to a neighboring town or city to work or shop. The central planners have everything figured out as we move into the future they have prepared for us.

    I have fond memories of the freedom of life in Vermont before Act 250 the planning agenda took control; I wonder what life will be like here after Act 250 the enforcement agenda is installed?

    We should realize UN enhanced changes to Act 250 if put in place this year could possibly remove any authority we currently have as individuals for safeguarding our property rights.
    We must understand UN Agenda 2030 desires are poised to be imposed on us just as the original Act 250 was 50 years ago. However then we were being asked only to plan and were more unsuspecting as well as without benefit or realization of a 50 year track record. Now I fear the enhanced revision if passed by our legislature will have entered us into the enforcement phase of our transformation, thus leaving us with little or no authority to do anything other than comply as our standard of living declines even more along with the use of our own property.

    When we freely allow our property rights to be confiscated we are killing the engine of incentive that enables our Capitalist system to produce its own prosperity. This comes after it has already been weakened by 50 years of incremental program creation claiming to revitalize the damage these very programs have inflicted.

    Capitalism has not failed us, we have failed to see what is killing it and I am as guilty as anyone for not paying attention sooner.

    How could our governor focus on affordability, then embrace the very things like subsidizing electric cars and enhancing act 250 to a higher standard of compliance without understanding that will only raise the rate of our livable wage?
    These ideas came to us from special interest and their lobbyist, not the people of Vermont who must pay the price as it climbs higher.

    If we really want to gain control of our affordability problem maybe we should have a five year moratorium on lobbyists?

    • I didn’t have space for this, but Jonathan Brownell himself drifted quite far away from Act 250 in operation, only 4 years after its passage. The first chair of the E Board, Navy Capt. Ben Partridge, resigned in protest within two years.

      • This is as close to a real crisis as I have ever seen for the people of Vermont and we must find a way to break into the consciousness of all Vermonters now before this revision is allowed to take place. I have spent a year educating myself on how this is happening and trying to make others see what is happening through this shadow government we call regional planning in my community of Wallingford.

        We are so immersed in the details of issues that distract us, most are not seeing the big picture and have forgotten what makes our system work or perhaps we have forgotten to teach it.

        There needs to be a mass gathering of Vermonters this year (Conference) for the purpose of understanding what Vermont Strong could mean when Vermonters see the Big Picture. We don’t have time waste this must be fast tracked in public view!

    • Many of the things we see coming now have been in California for years. I can recall many news reports from the Monterey area when I was stationed there in 1990, 1997 and finally in 2007.
      The one egregious example that sticks with me is when a board member in neighboring Seaside, CA refused to let a couple build a home on beachfront property they had purchased decades earlier unless the home appeared to resemble a seashell from the air. The board member believed she had been a seagull in a previous life, and could very well be a seagull in a future life, and was adamant about her position.
      I recall thinking that it would only be a matter of time before this wacky thinking reached Vermont, because these nut jobs are the ones running for office and volunteering to serve on local commissions. Just as with CA, an apathetic populace has allowed itself to be crushed, bullied and beaten into submission.

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