The Permitting Wars - Part I

The State of Vermont’s own Brand Study found Vermont businesses feel “Vermonters view business growth as a threat to their quality of life” and, “this mindset underlies the obstructionism and capriciousness associated with the permitting process and regulatory establishment.”

Despite this clear and unequivocal statement, Vermonters still debate, on this site and elsewhere,  its truthfulness.  Pretending for a moment that it even matters if the perception is true or not, I’m going to analyze actual cases to shed some light on why businesses might believe our regulatory system is capriciously implemented and administered.

In re Green Crow Corporation:

On December 14th 2007 the Vermont Supreme Court reversed an Environmental Board ruling that had granted itself expanded jurisdiction over lands being logged below 2500 feet.  In the words of the court,

"Green Crow’s permit-application odyssey began in October 2003, when it applied to the District #3 Environmental Commission for an Act 250 permit to log land above 2,500 feet in Granville.  Green Crow I,.  The commission issued a permit authorizing Green Crow to log 184 acres above 2,500 feet, but the permit also imposed conditions on approximately 1,000 additional acres below 2,500 feet.  The commission explicitly found that it had jurisdiction to impose permit conditions on “all access roads, skid trails, accesses and log landings related to the logging above 2,500 feet, even if the roads, trails, and landings are below 2,500 feet.” Green Crow appealed to the Environmental Board in March 2004."

Act 250 prohibits “development” without a permit.  10 V.S.A. § 6081(a). Construction of improvements for industrial or commercial activity, including logging, above 2,500 feet is “development.” Id. § 6001(3)(A)(vi).  However, “[t]he construction of improvements for . . . logging . . . purposes below the elevation of 2,500 feet” is explicitly excluded from the term “development.”  Id. § 6001(3)(D)(i). Thus, the applicable statute expressly excludes from the Environmental Board’s jurisdiction logging activities below 2,500 feet.  At issue is whether or not the application that included lands above and below 2,500 feet brings the lands below 2,500 feet into the Board's jurisdiction. 

In the original application the Board decided the land below 2500 feet was within its jurisdiction and specified conditions on this land, along with the land over 2500 feet. Crow appealed this decision and the "Board determined, in that appeal, that it lacked jurisdiction to determine whether Act 250 applies to logging activity on lands below 2,500 feet."

At this point, you are probably thinking, "Didn't the Board already decide this when it made the first ruling?" Yes, it did. They could not have placed conditions on the lands below 2500 feet without first having considered their jurisdiction to do so.

Crow appeals again, this time to the state Supreme Court, to challenge the Board's unwillingness to determine its own jurisdiction. The Court remands the case back to the Board, ordering it (twice) to make the determination. The Board concluded that it did have jurisdiction - even though the Agency of Natural Resources filed a brief in support of Crow. The Board predicated its decision on the concept of “involved land” which amounts to claiming that once its jurisdiction is triggered by the high elevation lands, the entire project comes within its purview -- to include land that would not have otherwise been included if not for the proposed project.

Crow appeals yet again, this time to challenge the Board's determination of  its expanded jurisdiction. Note, Act 250 does not expressly confer authority on the Board or the district commissions to impose permit conditions on logging-related activities below 2,500 feet. The Supreme Court ruled that,

“we will not, however, sustain a decision in which an administrative body like the Board purports to enlarge its own powers beyond those granted by the Legislature.” “An administrative agency may not use its rule-making authority to enlarge a restrictive grant of jurisdiction from the legislature.”

“Where the “development” for which a permit is sought consists entirely of logging and related activities, as is the case here, we do not believe the Legislature intended to subject the low-elevation activities to Act 250 scrutiny simply because they are also related to the high-elevation logging.  The skid-track and road-building activities below 2,500 feet, even if associated with logging above that elevation, are functionally no different from the same activities affiliated only with low-elevation logging, which Act 250 plainly confers no power to regulate.”

The Supreme Court reversed and remanded to modify permit conditions applicable to land above 2,500 feet if necessary.

Those of you who bothered to read this entire post are probably wondering: What motivated the Board to claim an expanded jurisdiction that was not consistent with statue or existing case law? Was it capriciousness, righteousness, or, just plain arrogance?

One thing is clear -- the application took four years and two months to resolve. The process involved at least three appeals to the Board as well as two Supreme Court appeals.  This whole process undoubtedly cost many thousands of dollars in legal fees.

Is there any question, then, how Crow feels about the Vermont permitting process?

Comments

[James Ehlers]

Perception is reality:

http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20080102/NEWS01/801020304/1009

James Ehlers

[Karen Kerin]

It is the cost of getting a permit that has made Vermont hostile to every effort to build or develop. First one must get by the local zoning if there is any and then it is Act 250 and the appeals process. There are too many thousands of wasted dollars for any sane recovery. Worst yet, there is no recovery for legal costs.

[Lazarus Long]

On the day of this post the evening news from Burlistan carried a story about a housing project in the sacred North End that was coming underfire from the NIMBYs. Talk about timely!

Alas, poor Forest Watch! we knew them well. It's a shame that they had trouble raising cash. Must be they were not pure enough. Isn't the tree house cute? Did he get a permit for that?

[David Usher]

While the courts are and should be an avenue for citizens and aggrieved parties to resolve differences, some environmentalists purposely have abused the process to hinder development and various economic activity. The costs of permitting and subsequent litigation that many 'wealth creators' have endured in Vermont is inimical to sound environmental policy and a barrier to economic progress.

[G. Cross]

Don't cry too long, Mr. Long, Forest Watch is now a part of a much larger and much better funded organization. Futhermore, their local coordinator, a very bright young lady, is still on board. The careful eyes of thoughtful conservationists will still be very much in play in Vermont.

[Lazarus Long]

Forest Watch and its companions are not "conservationists", they are preservationists and obstructionists.