Backgrounder: Act 250, the Land Use and Development Act

Passed in the spring of 1970, Act 250 was the result of development pressures brought on by the opening of I-91 and I-89. The governor and state legislature were among those concerned that greater access would result in environmental problems, traffic congestion and over development among other problems that would combine to be a burden on local governments and lead to increasing taxes.

Act 250 review and approval is required for a real estate development on a piece of property in excess of 10 acres or on property larger than 1 acre if it’s in a town that does not have established zoning and subdivision laws. (Even though the Dollar General is proposed for slightly more than 1 acre, the entire property is more than 10 acres.) The Act 250 process is separate and distinct from the local zoning approval process.

Under Act 250, the state is divided into nine districts, each of which has a three-member commission that hears evidence and decides whether to issue a land-use permit.

Ten criteria are considered by a commission when deciding whether a project has an undue adverse effect and whether such a development should go forward. The applicant has the burden of proof for some criteria, while those who have “party status” must prove their case in other criteria. Party status is automatic for some – like the local government and planning commission and abutters – while others such as local residents show why they should have party status.

Opposing parties must state their objections in terms of their “particularized interest,” for example, how the project has an adverse effect and how it affects the person testifying against it. The commission is not supposed to consider arguments based on emotion or the economics of one business vs. another.

Those speaking against the Dollar General plan were testifying under several criteria including: 1d (floodways); 5 (traffic); 8 (aesthetics); and 10 (conformance with local and regional plans.) Parties may also have experts testify within the criteria. These might be architects, civil engineers, landscape architects, economists, traffic engineers among others.

At the end of the hearing, the commission may recess to review the testimony and request more information, or it may adjourn to deliberate and write a decision. Such findings must be issued within 20 days of the adjournment.

A decision by an Act 250 Commission may be appealed to the Environmental Division of the Vermont Superior Court by the applicant or any of the parties to the case. The Environmental Court’s decision may be appealed to the Vermont Supreme Court.