Strict, Fair, Swift and Certain

A month ago another important redevelopment project in Vermont hit the wall. This time the project was Burlington's $8 million waterfront redevelopment. If ever a large project was ardently desired by the great majority of the people of a city, incuding all levels of city government from the Mayor on down, this project was it. As proposed, the complex of inn, cinema, solarium and amphitheatre near the existing boathouse and train station would make Burlington's waterfront a major attraction, a small city version of Baltimore's Inner Harbor or San Francisco's Fisherman's Wharf.

But the waterfront project is, alas, stalled. One fifth floor condo owner within view of the project has vowed to take his objections into the Act 250 process. A determined objector and his lawyers can use that process to tie up a project for years. The promoter of the waterfront project, Burlington businesswoman Melinda Moulton, was quoted as saying "I can't believe that one person has the power to hold this thing up now."

Believe, Ms. Moulton. This is Vermont.

The unhappy fate of the waterfront project illustrates once again what every developer in Vermont, except possibly the incredulous Ms. Moulton, has come to know well. Act 250 has become a regulatory Vale of Tears that can swallow an applicant whole. To put it bluntly, Act 250 has among other things become a weapon of extortion for any adjacent resident, threatened competitor, anti-growth group and affected sorehead who can insinuate itself into the process and hold a project for ransom. Consider these examples.

  • When C&S Wholesale Distributors in Brattleboro sought additional plant space in the town's existing industrial park, it was opposed by several adjacent building owners who offered to withdraw their objections if the company would buy their buildings at an astronomical price. After spending half a million dollars on engineering and legal fees, C&S got a permit with so many unacceptable conditions that it expanded in Massachusetts instead.

  • When OMYA sought a permit to expand its Middlebury limestone mining operation, it was blocked by Brandon innkeepers whose lawyer explained that their objections would evaporate if OMYA would buy them out at an astronomical price. OMYA refused; it is still in court seeking to overturn an Act 250 limitation on truck trips on US 7 through Brandon.

  • A small business in Fairlee sought to expand a truck maintenance yard. A disgruntled former employee who lived across the road tied the project up for two years. The business moved to New Hampshire..

    To stop a project, the objectors don't have to persuade a District Environmental Commission to deny a permit . They may only need to get a Commission to attach costly or impractical conditions to a permit. Or they can hold the project hostage until the applicant agrees to a cash payoff. Perhaps most commonly, they can simply drag the applicant through month after year of costly proceedings before commissioners who often seem oblivious to the time, money, and the pressures of a changing marketplace.

    As one now retired manufacturer recently put it: "I've built plants in Vermont, Mississippi and New Jersey. I would never advise anyone to build a plant in Vermont. Manufacturers who invest in plants have to know when the plant's product will come off the line. In Vermont, you can never know."

    There are few if any fly by night, slash and burn developers in this state. Vermont's developers and plant builders are perhaps unmatched in the country for their awareness of social and environmental implications of their projects. They are willing to live with strict regulations, and even some silly regulations. But they deserve a regulatory process that is is fair, swift, and certain.

    Act 250, like many other state regulatory processes, has long since failed those tests. Whoever is elected Governor this year ought to make remediation of the regulatory process a top priority. The anti-growth lobby groups and extorting objectors have had it their way for 30 years. But enough is enough. Vermonters are entitled to demand "fair, swift and certain" from their government regulators, and a process run so efficiently that its length and cost can't be used for the purpose of extortion.

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

    August 2000

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